End User License Agreement for "Smartphone & Cross-platform Communication Toolkit" and TOOLS for SMART MINDS terms and conditions of sale

IMPORTANT - PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING WITH THIS PROGRAM INSTALLATION.

TOOLS for SMART MINDS End User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and TOOLS for SMART MINDS ("T4SM") for software product(s) identified above which may include associated software components, media, printed materials, and "online" or electronic documentation ("SOFTWARE PRODUCT").
By installing, copying, or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA.

This license agreement represents the entire agreement concerning the program between you and T4SM, (referred to as "licenser"), and it supersedes any prior proposal, representation, or understanding between the parties. If you do not agree to the terms of this EULA, do not install or use the SOFTWARE PRODUCT. The SOFTWARE PRODUCT is licensed, not sold.


1. GRANT OF LICENSE.

The SOFTWARE PRODUCT is licensed as follows:

(a) Installation and Use.
T4SM grants you the right to install and use copies of the SOFTWARE PRODUCT on your computer running a validly licensed copy of the operating system for which the SOFTWARE PRODUCT was designed

(b) Backup Copies.
You may also make copies of the SOFTWARE PRODUCT as may be necessary for backup and archival purposes. 2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.

(a) Maintenance of Copyright Notices.
You must not remove or alter any copyright notices on any and all copies of the SOFTWARE PRODUCT.
(b) Distribution.
You may not distribute registered copies of the SOFTWARE PRODUCT to third parties. Evaluation versions available for download from T4SM's websites may be freely distributed.
(c) Prohibition on Reverse Engineering, Decompilation, and Disassembly.
You may not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCT, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(d) Rental.
You may not rent, lease, or lend the SOFTWARE PRODUCT.
(e) Support Services.
T4SM may provide you with support services related to the SOFTWARE PRODUCT ("Support Services"). Any supplemental software code provided to you as part of the Support Services shall be considered part of the SOFTWARE PRODUCT and subject to the terms and conditions of this EULA.
(f) Compliance with Applicable Laws.
You must comply with all applicable laws regarding use of the SOFTWARE PRODUCT.

(g) Hazardous Uses.
The SOFTWARE PRODUCT is not for use in or in connection with any applications or systems that are critical, high risk, or require stable operation and could result in significant risk of loss or actual loss as a result of application failure or shutdown or other errors or complications arising from technical or human error, including without limitation nuclear facilities, aircraft navigation or communication systems, air traffic control, surgical implants, life support systems, or weapon systems in which the failure of (or inability to access) the program or software could lead to death, personal injury or severe physical or environmental damage.


3. TERMINATION

Without prejudice to any other rights, T4SM may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the SOFTWARE PRODUCT in your possession.


4. COPYRIGHT

All title, including but not limited to copyrights, in and to the SOFTWARE PRODUCT and any copies thereof are owned by T4SM or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the SOFTWARE PRODUCT is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content. All rights not expressly granted are reserved by T4SM .


5. NO WARRANTIES

T4SM expressly disclaims any warranty for the SOFTWARE PRODUCT. The SOFTWARE PRODUCT is provided 'As Is' without any express or implied warranty of any kind, including but not limited to any warranties of merchantability, non-infringement, or fitness of a particular purpose. T4SM does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the SOFTWARE PRODUCT. T4SM makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. T4SM further expressly disclaims any warranty or representation to Authorized Users or to any third party. The same warranty conditions are applied by Distributors and Service Providers.


6. LIMITATION OF LIABILITY

In no event shall T4SM be liable for any damages (including, without limitation, lost profits, business interruption, or lost information) rising out of 'Authorized Users' use of or inability to use the SOFTWARE PRODUCT, even if T4SM has been advised of the possibility of such damages. In no event will T4SM be liable for loss of data or for indirect, special, incidental, consequential (including lost profit), or other damages based in contract, tort or otherwise. T4SM shall have no liability with respect to the content of the SOFTWARE PRODUCT or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. The same warranty conditions are applied by Distributors and Service Providers. This Agreement constitutes the complete agreement between you and T4SM regarding the SOFTWARE and it supersedes any oral or written proposals, prior agreements, purchase orders, or any other communication between you and T4SM relating to the subject matter of this Agreement.

T4SM Terms and Conditions of Sale

Customer and T4SM agree that the purchase and sales of "Smartphone & Cross-platform Communication Toolkit" ("the Products") and T4SM software services and support (the "Services") are made under these terms and conditions, and that T4SM SHALL NOT BE BOUND BY CUSTOMER'S ADDITIONAL OR DIFFERENT TERMS. Customer's order and purchase of the Products and Services shall constitute acceptance of these terms and conditions.


1. TITLE.

Title to the Products shall pass to the Customer upon shipment or download. However, T4SM retains a security interest and right of possession in the Products until Customer makes full payment.


2. TAXES.

Product prices are exclusive of, and Customer shall pay, applicable sales, use, service, value added or like taxes, unless Customer has provided T4SM with an appropriate exemption certificate for the delivery destination acceptable to the applicable taxing authorities.


3. PRICES AND PAYMENT.

All quotations shall expire thirty (30) days from date of issuance, unless otherwise set forth on the quotation or agreed in writing. Customer shall make payment in full prior to or upon delivery by cashier's check, credit card, or money order, unless T4SM approves Customer for credit terms. If T4SM approves Customer's credit application, payment shall be due no later than 30 days from the date of T4SM invoice. All sums not paid when due shall accrue interest daily at the lesser of a monthly rate of 1.5% or the highest rate permissible by law on the unpaid balance until paid in full.


4. ORDERS.

All orders are subject to acceptance by T4SM. T4SM booking of an order shall constitute its acceptance of an order.


5. LIMITED WARRANTY.

T4SM hardware Products are warranted against defects in materials and workmanship for one (1) year from the date T4SM ships the Products to Customer ("Delivery Date"). Any replacement of a licensed software product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Customer must obtain a Return Material Authorization number from T4SM before returning any Products under warranty to T4SM. Customer shall pay expenses for shipment of repaired or replacement Products to and from T4SM. After examining and testing a returned product, if T4SM concludes that a returned product is not defective, Customer will be notified, the product returned at Customer's expense, and a charge made for examination and testing. This Limited Warranty is void if failure of the Products has resulted from accident, abuse, misapplication, modification, improper calibration by Customer, Customer supplied third party software not intended for use with the applicable T4SM software, utilization of an improper hardware or software key or unauthorized maintenance or repair.


6. CUSTOMER REMEDIES.

T4SM sole obligation (and Customer's sole remedy) with respect to the foregoing Limited Warranty shall be to, at its option, return the fees paid or repair/replace any defective Products, provided that T4SM receives written notice of such defects during the applicable warranty period. Customer may not bring an action to enforce its remedies under the foregoing Limited Warranty more than one (1) year after the accrual of such cause of action.


7. RETURN/CANCELLATION/CHANGE POLICY.

Customer may return unwanted Products within thirty (30) days of the Delivery Date. Customer shall pay a fifteen percent (15%) restocking charge on any unwanted Products returned to T4SM. No returns will be accepted after the thirty (30) day period has expired. Where special equipment or services are involved, Customer shall be responsible for all related work in progress; however, T4SM shall take responsible steps to mitigate damages immediately upon receipt of a written cancellation notice from Customer. A Return-Material Authorization number must be obtained from T4SM for return of any Products. T4SM may terminate any order if any representations made by Customer to T4SM are false or misleading. Changes to orders shall not be binding upon nor be put into effect by T4SM unless confirmed in writing by T4SM appropriate representative.


8. NO OTHER WARRANTIES.

Except as expressly set forth above, the products are provided "as is" without warranty of any kind, and no other warranties, either expressed or implied are made with respect to the products, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, title or non-infringement or any other warranties that may arise from usage of trade or course of dealing. T4SM does not warrant, guarantee, or make any representations regarding the use of or the results of the use of the products in terms of correctness, accuracy, reliability, or otherwise and does not warrant that the operation of the products will be uninterrupted or error free. T4SM expressly disclaims any warranties not stated herein.


9. NO LIABILITY FOR CONSEQUENTIAL DAMAGES.

The entire liability of T4SM and its licensors, distributors, and suppliers (including its and their directors, officers, employees, and agents) is set forth above. To the maximum extent permitted by applicable law, in no event shall T4SM and its licensors, distributors, and suppliers (including its and their directors, officers, employees, and agents) be liable for any damages, including, but not limited to, any special, direct, indirect, incidental, exemplary, or consequential damages, expenses, lost profits, lost savings, business interruption, lost business information, or any other damages arising out of the use or inability to use the Products, even if T4SM or its licensors, distributors, and suppliers has been advised of the possibility of such damages. Customer acknowledges that the applicable purchase price or license fee for the Products reflects this allocation of risk.


10. WARNING:

(1) T4SM Products are not designed with components and testing for a level of reliability suitable for use in or in connection with surgical implants or as critical components in any life support systems whose failure to perform can reasonably be expected to cause significant injury to a human. (2) In any application, including the above, reliability of operation of the software products can be impaired by adverse factors, including but not limited to fluctuations in electrical power supply, computer hardware malfunctions, computer operating system software fitness, fitness of compilers and development software used to develop an application, installation errors, software and hardware compatibility problems, malfunctions or failures of electronic monitoring or control devices, transient failures of electronic systems (hardware and/or software), unanticipated uses or misuses, or errors on the part of the user or applications designer (adverse factors such as these are hereafter collectively termed "system failures"). Any application where a system failure would create a risk of harm to property or persons (including the risk of bodily injury and death) should not be reliant solely upon one form of electronic system due to the risk of system failure. To avoid damage, injury, or death, the user application designer must take reasonably prudent steps to protect against system failures, including but not limited to back-up or shut down mechanisms. Because each end-user system is customized and differs from T4SM testing platforms and because a user or application designer may use T4SM Products in combination with other products in a manner not evaluated or contemplated by T4SM, the user or application designer is ultimately responsible for verifying and validating the suitability of T4SM Products whenever T4SM Products are incorporated in a system or application, including, without limitation, the appropriate design, process and safety level of such system or application.


11. FORCE MAJEURE.

T4SM shall be excused for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of governments, natural catastrophes, acts of Customer, interruptions of transportation or inability to obtain necessary labor or materials. T4SM estimated shipping schedule shall be extended by a period of time equal to the time lost because of any excusable delay. In the event T4SM is unable to perform in whole or in part because of any excusable failure to perform, T4SM may cancel orders without liability to Customer.


12. LIMITED INDEMNITY AGAINST INFRINGEMENT.

T4SM shall, at its own expense, defend any litigation resulting from sales of the Products to the extent that such litigation alleges that the Products or any part thereof infringes any patent, copyright, or trademark, provided that such claim does not arise from the use of the Products in combination with equipment or devices not made by T4SM or from modification of the Products, and further provided that Customer notifies T4SM immediately upon its obtaining notice of such impending claim and cooperates fully with T4SM in preparing a defense. If Customer provides to T4SM the authority, assistance, and information T4SM needs to defend or settle such claim, T4SM shall pay any final award of damages in such suit and any expense Customer incurs at T4SM written request, but T4SM shall not be liable for a settlement made without its prior written consent. If the Products are held to be infringing and the use thereof is enjoined, T4SM shall, at its option, either (i) procure for the Customer the right to use the Products, (ii) replace the Products with others which do not constitute infringement, or (iii) remove the infringing Products and refund the payment(s) made therefore by Customer. The foregoing states the Customer's sole remedy for, and T4SM entire liability and responsibility for, infringement of any patent, trademark, or copyright relating to the Products provided hereunder. This limited indemnity is in lieu of any other statutory or implied warranty against infringement.


13. ACKNOWLEDGMENT/GOVERNING LAW.

Customer acknowledges reading these Terms and Conditions, understands them and agrees to be bound by them. A waiver of any provision of this agreement shall not be construed as a waiver or modification of any other term hereof.


14. SERVICES. Limited Warranty.

T4SM warrants that Services will be performed in a good and workmanlike manner. Except as expressly stated in the preceding sentence, T4SM makes no express or implied warranties with respect to the Services, including but not limited to (a) any warranty relating to third-party products or (b) any warranty concerning the results to be obtained from the Services or the results of any recommendation T4SM may make, including without limitation any implied warranties concerning the performance, merchantability, suitability, non-infringement or fitness for a particular purpose of any of the deliverables or of any system that may result from the implementation of any recommendation T4SM may provide. In order to receive warranty remedies, deficiencies in the Services must be reported to T4SM in writing within 90 days of completion of the Services. Limitation of Liability. T4SM is not liable for any incidental, indirect, special, or consequential damages arising out of or in connection with the Services provided by T4SM, including without limitation loss of use of the Products or any other software or data, including inability to achieve a particular result, even if T4SM has been advised of the possibility of such damages or even if the damage is the direct result of an instruction or suggestion made by T4SM. Except for claims that the Services caused bodily injury (including death), T4SM total liability arising out of or in connection with any event or series of connected events occurring in connection with the Services shall not exceed the amount of fees paid under the separate written agreement between Customer and T4SM. These provisions allocate the risks under the separate written agreement between Customer and T4SM. T4SM pricing reflects this allocation of risk and the limitation of liability specified herein. High Risk Activities. Customer understands and agrees that T4SM has not tested or certified its Services for use in high risk applications including medical life support, nuclear power, mass and air transportation control, or any other potentially life critical uses and makes no assurances that the Services are suitable for any high risk uses. Indemnification. Customer accepts responsibility for, and agrees to indemnify and hold T4SM harmless from, any and all liability, damages, claims, or proceedings arising out of (a) the failure of Customer to obtain the appropriate license, intellectual property rights, or any other permissions required to support any Products or T4SM performance of the Services, including but not limited to, the right to make any copies or reproductions of any Customer-provided software or (b) any inaccurate representations regarding the existence of an export license or the eligibility for export of software or other materials without a license.