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> Software End User License Agreement
SOFTETHER CORPORATION Software End User License Agreement PLEASE READ THE TERMS AND CONDITIONS OF THIS SOFTWARE END USER LICENSE AGREEMENT ('AGREEMENT') CAREFULLY. THEY ARE INTENDED TO CREATE A LEGALLY BINDING AGREEMENT BETWEEN YOU, THE CUSTOMER (REGARDLESS OF WHETHER AS AN INDIVIDUAL OR ENTITY) AND US, SOFTETHER CORPORATION, A JAPANESE CORPORATION ('SOFTETHER'). THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UPON WHICH SOFTETHER AND ITS LICENSORS (COLLECTIVELY, 'SOFTETHER', 'WE', 'OUR' OR 'US') PERMIT YOU TO DOWNLOAD, INSTALL AND USE THE PACKETIX VPN VERSION 2.0, RELATED MEDIA, FILES, MATERIALS AND DOCUMENTATION AND INTERNET-BASED SERVICE FUNCTIONING AS PART OF SUCH SOFTWARE (COLLECTIVELY, THE 'SOFTWARE'). BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, AND/OR CLICKING ON THE 'I ACCEPT/AGREE' BUTTON, YOU ARE SIGNIFYING YOUR AGREEMENT TO BE LEGALLY BOUND BY EACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT WISH TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE, AND/OR CLICK ON THE 'I DISAGREE/DECLINE' BUTTON. 1. Grant of a Limited License. Subject to the terms of this Agreement, including, without limitation those described in Sections 2 and 3 below, and your payment of the subject license fee (if applicable), SoftEther hereby grants to you a limited, personal, non-exclusive, non-sublicensable, non-assignable, revocable right and license to download, install and use the Software on your computer in accordance with the instructions, specifications and documentation provided with the Software. 2. Product License Key and Connection License Key. (This part is applied to VPN Server.) In connection with the use of the Software, you must obtain and maintain in accordance with the terms of this Agreement a product license key and Connection License Key distributed by SoftEther. Prior to downloading, installing or using the Software, you must obtain a valid product license key for the Software distributed by SoftEther (hereinafter 'Product License Key'). You may not download, install or use the Software without having first obtained a valid Product License Key. For purposes of this Agreement, a valid Product License Key means solely a license key which has been distributed directly by SoftEther or by its approved distributor (hereinafter 'Partner'), or received through a channel specified by SoftEther. In the event you possess a valid Product License Key, you may use the Software functions applicable to the license editions ('Editions') designated together with the Product License Key you have. Of the functions incorporated into the Software, you may not use the functions applicable to those Editions which are not specified together with the Product License Key you have. The functions which may or may not be used for each Edition shall be determined by SoftEther in its discretion, and shall be described in the applicable Software documentation. In the event SoftEther specifies additional terms of use when distributing the Product License Key and the applicable Edition to you, you must use the Software in accordance with those additional terms. In the event the additional terms conflicts with any portion of this Agreement, the additional terms shall supersede the conflicting terms herein and govern. In the event the Edition designated together with the Product License Key you have is an Edition which has the purpose of allowing for an increase in the number of computers which can gain simultaneous access to the Software server function through a network connection, before using the Software server function, you must obtain a valid Connection License Key from SoftEther (hereinafter 'Connection License Key'). In this situation, your use of the Software server function without having first obtained a valid Connection License Key is prohibited. In the event the Product License Key or Connection License Key that you have has a time limit specified, your right to use the Software functions through the license keys shall expire upon such time limit being reached. With respect to license keys distributed by SoftEther to you, you shall handle them in the same manner as you would any customary copyrighted computer programs or written materials, and you must not disclose to any third party or otherwise make available for public disclosure any part of or the entire Product License Key or Connection License Key without SoftEther’s prior written approval. In the event you violate the foregoing provision and the license key is disclosed to multiple third parties, SoftEther may invalidate license key. In the event the Product License Key or the Connection License Key you possess becomes invalid, you must immediately cease use of the Software functions you had been using through the subject license keys. Moreover, in the event you no longer can use the Software because all license keys have become invalid, you must immediately uninstall the subject Software from the computer and you must delete or destroy the subject Software and any copies. With respect to the Product License Key or Connection License Key you possess, you shall not do any of the following: (a) To install and use the same Product License Key or Connection License Key on more than two computers. (b) To remove the restrictions which limits access to the use of certain Software functions by modifying a portion of the Product License Key or Connection License Key, or through some other means. (c) To use the Product License Key or Connection License Key for purposes other than for the installation to use the Software. (d) Where an individual Software runs on an individual computer, simultaneously install and use Product License Keys for multiple types of Editions. (e) To transfer a part of or the entire Product License Key or Connection License Key to any third party without SoftEther’s prior written approval. 3. Server Function. (This part is applied to VPN Server.) The maximum number of computers which can gain simultaneous access to your Software server function through a network connection shall be set as follows: (a) In the event the Edition designated together with the Product License Key you have is an Edition which has the purpose of allowing for an increase in the number of computers which can gain simultaneous access to the Software server function through a network connection, the aggregate of the total number of client access licenses which you obtain and possess which are designated with the Connection License Keys shall be deemed as the number of client access licenses which permits simultaneous access, and the aggregate of the total number of bridge access licenses which you obtain and possess which are designated with the Connection License Keys shall be deemed as the number of bridge access licenses which permits simultaneous access. (b) In the event the Edition designated together with the Product License Key you have is an Edition which designates a fixed number of computers which can gain simultaneous access to your Software server function through a network connection, the number of client access license which permits simultaneous access and number of bridge access license which permits simultaneous access shall be required in accordance with such designation. The number of computers which may gains simultaneous access shall be calculated by differentiating based on the following two types of access modes. SoftEther shall separately determine the technical conditions for each access and access modes, and shall conform to those conditions disclosed in the manual or electronic materials. (a) Client access modes calculated based on the number of client access licenses. (b) Routing access modes or bridge access modes calculated based on the number of bridge access licenses. You may not permit access to the Software function from computers which exceed the maximum number of computers which are permitted to gain simultaneous access in the manner described above. You hereby acknowledge and agree when offering functions in accordance with the license key details and the access license amounts, due to difficult or impossible technical limitations caused by underlying hardware or software, the performance of certain functions of the Software may decrease or become unstable. 4. Ownership. We retain exclusive right, title and interest (including all intellectual property rights) in and to the Software, copies thereof, and all error corrections, bug-fixes, patches, updates, derivative works, improvements, modifications thereto (whether made by us, you, or otherwise). The rights described in the foregoing sentence are our copyrighted work and are protected by the copyright laws of the United States, Japan, international copyright treaties and conventions, and/or other applicable laws. All rights are reserved. The Software may contain certain licensed materials, and the licensors of those materials may enforce their rights in the event of any violation of this Agreement. Nothing in this Agreement is intended to transfer any of the right, title and interest (including all intellectual property rights) described in the paragraph above from us to you or any third party. If you are ever inadvertently or erroneous held or deemed to be the owner of any such rights, you agree to assign and hereby irrevocably assign to us all such rights as of the effective date of this Agreement, and agree to execute all documents to implement and confirm the letter and intent of the foregoing. Only those licenses expressly set forth in this Agreement are granted. No other licenses are granted under this Agreement, whether by implication, estoppel, course of conduct, or otherwise. 5. Specific Limitations. The licenses granted to you by this Agreement are personal to you and is subject to the following further limitations. You shall not or permit any other person to: (a) in whole or in part, (i) modify or create any derivative work of the Software, or (ii) copy, photocopy, reproduce, translate, disassemble, reverse engineer, decompile, or otherwise attempt to derive source code, underlying ideas, algorithms, structure, or organization of the Software; (b) modify or remove any copyright, patent, confidentiality, trade mark, trade names and other marks, notices, labels or legends in the Software; (c) sell, grant a security interest in or transfer reproductions of the Software to other parties in any way not expressly authorized herein; (d) assign, rent, lease or license the Software to others; (e) use the Software in a manner which has the effect of removing limitations on the functionalities incorporated therein. Through the use of a license key, the Software incorporates a system which allows for the implementation or removal of certain functionality limitations. You shall not or permit any other person to use the Software in a specific manner contrary to the customary use of the Software to activate part or all of the Software’s functionalities which are not permitted; (f) install any license keys into the Software which has not been approved by SoftEther; (g) make more than one copy of the Software for purposes other than back-up; (h) use the Software in violation of any applicable laws or regulations; or (i) separate or detach the component of the Software. Your failure to comply with the restrictions and limitations listed above and elsewhere in this Agreement shall result in immediate, automatic termination of the license granted hereunder and may subject you to civil and/or criminal liability. 6. Termination. This Agreement is effective until terminated. This Agreement may be terminated by either party on written notice if the other party is in breach of the terms of this Agreement (including failure to pay any amounts owed) and fails to remedy the breach within ten (10) days of receipt of notice thereof. This Agreement shall terminate automatically upon the occurrence of any of the following events: (a) Any proceedings are commenced by or against you under applicable bankruptcy laws naming you as the debtor; (b) one or more of your creditors takes possession of or is assigned substantially all of your tangible assets or current assets; (c) you make a general assignment for the benefit of your creditors; or (d) a receiver is appointed to manage all or substantially all of your assets. Upon termination of this Agreement, you shall further immediately destroy or return to SoftEther the Software, any and all documents, notes and other materials regarding the Software provided by SoftEther, including, without limitation, all of SoftEther proprietary information and all copies and extracts of the foregoing. Upon request by SoftEther, you will certify in writing to its full compliance with this Section 6. 7. License Management Technology. The Software may include certain license management technology. In such an event, upon activation of the Software functions, the license management technology will automatically communicate with our license management server and verify whether the license key installed with the Software is valid. The computer's IP address, the host name, the software version, and the digital license data may be transmitted via the Internet. Moreover, in the event we determine that the subject license key is invalid or this Agreement has expired, the subject Software may be automatically deactivated by the license management technology. You acknowledge and agree to the application of our license management technology in the manner described herein. 8. Upgrades and New Versions of the Software. From time to time we may issue upgrades and new versions of the Software. SoftEther shall determine in its sole discretion whether to license those upgrades and new versions separately and charge a separate license fee. 9. Technical Support and Training. In the event you enter into a separate agreement for technical support and training for the Software with SoftEther or its partner, you will be required to pay the fees (if applicable) in accordance with the procedures set forth therein. Unless otherwise expressly agreed to in writing, SoftEther will not provide any technical support or training to you. 10. Limited Warranty. WE EXPRESSLY DISCLAIM ANY WARRANTY FOR THE SOFTWARE, ANY COMPONENTS THERETO (INCLUDING, WITHOUT LIMITATION, THE 'OpenSSL' SOFTWARE DEVELOPED BY THE OPENSSL PROJECT FOR USE IN THE OPENSSL TOOKIT, THE 'winPcap' SOFTWARE DEVELOPED BY NETGROUP, POLITECNICO DI TORINO (ITALY), AND THE 'zlib' SOFTWARE DEVELOPED BY JEAN-LOUP GAILLY AND MARK ADLER) AND ANY TECHNICAL SUPPORT SERVICES. THE SOFTWARE, ANY COMPONENTS THERETO AND ANY TECHNICAL SUPPORT SERVICES ARE PROVIDED 'AS IS' WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF CONDITION, DEFECTS, USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NONINFRINGEMENT. YOU ASSUME THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE AND ANY SUPPORT TECHNICAL SERVICES. 11. Limitation of Liability. NEITHER SOFTETHER NOR ITS PARENT, SUBSIDIARIES, AFFILIATES, AGENTS, DISTRIBUTORS, OR ITS LICENSORS SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM YOUR USE OF THE SOFTWARE OR ANY SUPPORT SERVICES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, DATA, PROFITS OR GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY AND ALL OTHER DAMAGES OR LOSSES. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312(3) OF THE U.S. UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATUTE IS EXPRESSLY DISCLAIMED. WE SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS OF SERVICE, INCLUDING, BUT NOT LIMITED TO, ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE. IN NO EVENT WILL WE, OUR PARENT, SUBSIDIARIES, AFFILIATES, AGENTS, DISTRIBUTORS, OR OUR LICENSORS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ANY KIND OR NATURE WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF ANY SUCH PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH LOSS OR DAMAGE ARISING FROM ANY MATTER RELATING TO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. 12. Equitable Remedies. You hereby agree that we would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to it under applicable laws. You hereby agree to indemnify and hold us, our parent, subsidiaries, affiliates, agents, distributors, or our licensors harmless from and against any liabilities, damages, judgments, losses, costs and expenses (including reasonable attorneys’ fees) arising out of your downloading, installation, or use of the Software, in a manner inconsistent with the terms and conditions of this Agreement. In the event any litigation is brought by us, our parent, subsidiaries, affiliates, agents, distributors, or our licensors in connection with this Agreement and any such party is deemed a prevailing party, such party shall be entitled to recover from you all the costs, attorneys’ fees and other expenses it incurred in such litigation. 13. Amendments. We reserve the right, in our sole discretion, to amend, add or delete any of the terms and conditions of this Agreement when the Software is upgraded, effective upon prior notice in a manner elected by SoftEther in its sole discretion. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you may terminate this Agreement in accordance with the terms herein. Your downloading, installation, or use of any updated or modified Software or your continued use of the Software following notice of changes to this Agreement signifies your acceptance of any and all such changes. We may change, modify, suspend, or discontinue any aspect of the Software at any time. We may also impose limits on certain features or restrict your access to parts or all of the Software without notice or liability. You disclaim any right, title or interest, monetary or otherwise, in any feature, content or intellectual property right contained in the Software. 14. Miscellaneous. 14.1 This Agreement shall be deemed to have been made and executed in Japan without regard to conflicts of law provisions, and any dispute arising hereunder shall be resolved in accordance with the laws of Japan. You agree that any claim asserted in any legal proceeding by one of the parties against the other shall be commenced and maintained in the Tokyo District Court located in Tokyo, Japan. 14.2 In the event that any provision of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible, and the remaining portions of this Agreement shall remain in full force and effect. 14.3 This Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements. 14.4 You acknowledge that we are subject to regulation by agencies of Japan, the United States, and other countries, which prohibits export of certain products or technology to certain countries or nationals of certain countries. You will cooperate with us to obtain any export licenses that we reasonably believe necessary to effectuate the supply of the Software hereunder. Moreover, you will comply fully with all relevant import and export laws, rules, and regulations of applicable jurisdictions to ensure that the Software is not imported or exported, directly or indirectly, in violation thereof. 14.5 SoftEther will not refund any fees paid by you in consideration for the Software upon termination or expiration of this Agreement. * * * I hereby acknowledge that I have read and understand the foregoing Agreement and agree that the action of downloading, installing, or using the Software is an acknowledgment of my agreement to be bound by the terms and conditions of the Agreement contained herein. Copyright (c) 2004-2007 SoftEther Corporation. All rights reserved. PacketiX(TM) is a trademark or registered trademark of SoftEther Corporation in Japan, the U.S., and/or other countries. All rights are reserved.
