COMFORT ON-SCREEN KEYBOARD LICENSE AGREEMENT FOR USE AND DISTRIBUTION

 

READ THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT (HEREINAFTER THE "AGREEMENT") CAREFULLY. BY DOWNLOADING, INSTALLING, IMPLEMENTING OR USING THIS SOFTWARE PRODUCT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE AS ANY WRITTEN AGREEMENT NEGOTIATED AND SIGNED BY YOU AND COMFORT SOFTWARE GROUP (HEREINAFTER "COMFORTSOFTWARE"). IF YOU ARE ACCESSING SOFTWARE ELECTRONICALLY, INDICATE YOUR ACCEPTANCE OF THESE TERMS BY SELECTING THE "ACCEPT" (OR EQUIVALENT) BUTTON. IF YOU DO NOT AGREE TO ALL OF THE TERMS, PROMPTLY RETURN THE UNUSED SOFTWARE TO YOUR PLACE OF PURCHASE FOR A REFUND OR, IF SOFTWARE IS ACCESSED ELECTRONICALLY, SELECT THE "DECLINE" (OR EQUIVALENT) BUTTON.

 

NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES SET FORTH HEREIN, COMFORTSOFTWARE AND YOU HEREBY AGREE AS FOLLOWS:

 

DEFINITIONS:

(a) "You" shall mean the individual using, implementing, downloading, or installing the underlying Software. In the event You are using, implementing, downloading, or installing the underlying Software on behalf of an Organization, all liability for a breach of this agreement shall be the responsibility of said Organization.

(b) "Licensee" shall mean You together with any Organization You may be representing, or any related agent, employee, or representative of You or such Organization that has downloaded, used, installed, or implemented the software package on Your behalf or on behalf of such Organization.

(c) "Software" shall mean any and all computer programs produced, created, developed, or provided by COMFORTSOFTWARE, including, but not limited to, applicable programs, fonts, components, hosted services, source code, modules, corresponding documentation, updates, upgrades, or modifications thereto.

(d) "Developer" shall mean an individual who has a primary job function of developing software applications.

(e) "Server" shall mean a computer system that multiple users access or make use of, including but not limited to, terminal servers, file servers, application servers or web servers.

(f) "Effective Users" shall mean the number of users that are effective for software licensing, which is determined by the following method that returns the greatest number: (1) The number of users that have access to the Software, (2) The number of computers on which the Software is installed, or (3) where the Software is used on a Server or run from a Server, the number of users per week that have access to the Software on the Server, or (4) the number of users per week that have access to programs making use of the Software on the server.

(g) "Organization" shall mean a single company, business unit, entity or individual. In this Agreement, each subsidiary of a company or business unit with a separate Tax ID is considered a separate Organization.

(h) "User" shall mean a single person that is making use of the Software.

 

TERMS:

1. License Grant

In consideration for the license fee paid, and other good and valuable consideration, COMFORTSOFTWARE grants to Licensee only, unless otherwise limited by the license purchased or granted, the nonexclusive, nontransferable, perpetual, world-wide right to use the Software in accordance with this Agreement and the license defined herein that Licensee purchases ("License"). If You are installing, accessing or using this Software for Your employer, this Agreement also includes Your employer. Licensee may only use the Software according to the License purchased or granted by COMFORTSOFTWARE. COMFORTSOFTWARE offers several license types to meet the needs of different Organizations and implementations. Particular Licenses are offered for each product depending on the intended use of the Software. COMFORTSOFTWARE offers some Licenses that are granted to Licensee by this Agreement and not purchased; these include the Optional Integration License, Evaluation License, Free License and the Beta License.

 

A. Single User License

The Single User License allows use of the Software for one User in Licensee's Organization according to Effective Users.

Home users may use their single computer usage license on all computers which are in property of the license owner.

 

B. Multiple User Licensing

Multiple user licenses grant the rights of the Single User License for a particular number of Users. For example, a 5 User License grants the rights for 5 Single User Licenses. These licenses may be combined; for example, 1 Single User License and a 10 User License = 11 licensed users.

 

C. Site License - allows use of the Software for all users at a single site within a single Organization. Because of the discounts associated with this license, technical support is provided to a single technical contact at Licensee's Organization instead of to each individual user.

 

D. Enterprise License - allows use of the Software for an unlimited number of users at an unlimited number of sites within a single Organization. Because of the discounts associated with this license, technical support is provided to a single technical contact at Licensee's Organization instead of to each individual user.

 

E. Developer License

Developer Licenses allows royalty-free distribution and use of the Software internally (in the same Organization) and externally (outside the Organization) for an unlimited number of developers and up to 5,000 user licenses according to Effective Users, provided Licensee adheres to the Developer License Distribution Terms.

 

F. Developer License Distribution Terms

As used in this section, the term ("User Licenses") shall mean the number of Users that Licensee's License allows according to the definition of Effective Users. The Developer License allows 5,000 Effective Users.

 

(a). Internal Distribution:

Allows use of the Software in Licensee’s Organization, provided Licensee does not exceed its User Licenses and Licensee adheres to the following terms:

(1) If distribution of Licensee’s application exceeds its User Licenses, additional Developer Licenses are required; each Developer License purchased will allow distribution of an additional 5,000 Effective Users. Royalty-free, unlimited distribution is granted after purchasing three Developer Licenses.

(2) The Software may be used on any number of Servers, provided that the number of users accessing all of the servers does not exceed Licensee’s User Licenses.

 

(b). External Distribution:

Allows Licensee to rent, lease or distribute the Software outside its Organization bundled with an application, provided Licensee does not exceed its User Licenses and Licensee adheres to the following terms:

(1) Licensee may not resell, rent, lease or distribute the Software alone. The Software must be distributed as a component of an application and bundled with an application or with the application's installation files. The Software may only be used as part of, and in connection with, the bundled application. Licensee may embed the Software into Licensee's firmware, provided a copyright notice is added in the firmware or documentation as detailed in number 4 of this section.

(2) Licensee may not resell, rent, lease, distribute or otherwise use the Software for the License that was purchased, in any way that would compete with COMFORTSOFTWARE. If it is determined by COMFORTSOFTWARE or Licensee that Licensee's distribution or use of the Software competes with COMFORTSOFTWARE, a reasonable royalty fee for Licensee's distribution or use of the Software must be negotiated and agreed to by Licensee and COMFORTSOFTWARE and paid to COMFORTSOFTWARE each quarter or another agreed upon interval of time.

(3) If Licensee uses the Software internally within its Organization, Licensee shall deduct the quantity of its User Licenses used within its Organization from the total number of its User Licenses that are distributed outside its Organization. For example, if Licensee has a One Developer License and uses 1,000 User Licenses internally, it may only distribute up to 4,000 User Licenses outside its Organization.

(4) A valid copyright notice must be provided within the user documentation, start-up screen or in the help-about section of Licensee’s application that specifies COMFORTSOFTWARE as the provider of the Software bundled with its application, for example: “<<your application name>> contains software components licensed from Comfort Software Group. These products may only be used as part of and in connection with <<your application name>>.”

 

2. Trial version

The software unlicensed trial version may be freely distributed, with exceptions noted below, provided the distribution package is not modified in any way.

(a) No person or company may distribute separate parts of the package without written permission of the copyright owner.

(b) The software unlicensed trial version may not be distributed inside of any other software package without written permission of the copyright owner.

(c) Hacks/cracks, keys or key generators may not be included on the same distribution.

 

3. Copyright

By downloading, installing, using, or implementing this Software, Licensee acknowledges COMFORTSOFTWARE’s copyright in the underlying software and code. The Software and the accompanying materials are licensed, not sold, to Licensee. COMFORTSOFTWARE maintains ownership of all copyright interests in the Software, including any derivative works based upon the Software, and excluding any application bundled with the Software by Licensee in accordance with this Agreement. Licensee may not rent, lease, display or distribute copies of the Software to others except under the conditions of this Agreement. Unauthorized copying of the Software or accompanying materials even if modified, merged, or included with other software, or of the written materials, is expressly forbidden. Licensee may be held legally responsible for any infringement of intellectual property rights that is caused or encouraged by Licensees failure to abide by the terms of this Agreement. Licensee may make copies of the Software as needed for development and use provided that the number of copies made do not exceed the number of users allowed by the License purchased. Licensee may also make a reasonable number of archival copies of the Software for backup and recovery purposes and may temporarily use the backup copy, including but not limited to during emergency situations, disaster recovery, or disaster recovery tests. In any case, when a copy is created, any copyright notices included in the Software must be reproduced in their entirety on the copy.

 

4. Software Modifications

If the Developer License is purchased, Licensee may modify any portions of the Software as needed, provided that copyright notices are not removed.

 

5. Agreement Duration and Termination

Subject to the terms and conditions of this Agreement, this Agreement begins when the Software is downloaded, installed, used or when a License for Software is purchased or granted and is perpetual unless terminated in accordance with this Agreement. When the Agreement begins, this Agreement shall supersede all older versions of this Agreement including any older Agreements that may be embedded in the Software. This Agreement shall inure to the benefit of and be binding upon COMFORTSOFTWARE and Licensee. Licensee may terminate this Agreement at any time by returning the Software to COMFORTSOFTWARE and destroying all copies thereof. This Agreement shall terminate upon notice from COMFORTSOFTWARE if Licensee fails to comply with any provision contained herein or if the funds paid for the license are refunded or are not received, and such failure or breach is not cured within thirty (30) days of such notice. Upon termination, Licensee must destroy the Software and all copies (in part and in whole, including modified copies, if any) in its possession or control. COMFORTSOFTWARE reserves the right to terminate this Agreement if the use of Software by Licensee causes a loss of revenue for COMFORTSOFTWARE that exceeds fifty (50) times the amount Licensee paid for the License. Termination of this Agreement shall not affect the Software bundled and distributed with an application under the Developer License by Licensee prior to termination, provided Licensee has purchased a Developer License for the Software, the bundled application does not compete with COMFORTSOFTWARE in any way, and funds for the License were received and not returned or refunded in any way. All restrictions prohibiting Licensee's use of the Software and intellectual property provisions relating to Software to the benefit of COMFORTSOFTWARE shall survive termination of this Agreement.

 

6. Priority Support and Upgrade Subscription

Unless otherwise indicated in the documentation of the Software, COMFORTSOFTWARE offers a free Priority Support and Product Upgrade Subscription for a period of thirty (30) days from the date of purchase on all licensed Software. When Licensee’s Priority Support is active, Licensee may contact COMFORTSOFTWARE by email and through the Online Priority Support Request Form. Priority Support and Product Upgrades may be provided beyond thirty (30) days if the Priority Support and Upgrade Subscription are purchased. Support may be provided to the appropriate individual that (a) ordered the License; (b) is integrating the Software; (c) a Developer; or (d) the end user if each end user has a separate License for the Software. If one Developer License is purchased, technical support is provided for only one Developer. The Developers responsibilities may be transferred to another Developer within the Organization as necessary provided no more than two (2) transfers occur within any ninety (90) day period. If Licensee’s Priority Support and Product Upgrade Subscription expires, Licensee may obtain free technical support by referring to support documents at the website or by renewing the Priority Support and Product Upgrade Subscription.

 

7. Returns

All returns must be received within thirty (30) days of purchase.

 

8. Disclaimer of warranty

THE SOFTWARE IS LICENSED "AS-IS". YOU BEAR THE RISK OF USING IT. COMFORTSOFTWARE GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, COMFORTSOFTWARE EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

 

9. Limitation on and exclusion of remedies and damages

YOU CAN RECOVER FROM COMFORTSOFTWARE AND ITS SUPPLIERS ONLY DIRECT DAMAGES UP TO U.S. $2.00.  YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES.

This limitation applies to (a) anything related to the software, services, content (including code) on third party Internet sites, or third party programs; and (b) claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law. It also applies even if COMFORTSOFTWARE knew or should have known about the possibility of the damages.

The above limitation or exclusion may not apply to you because your country may not allow the exclusion or limitation of incidental, consequential or other damages.