END USER LICENSE AGREEMENT (EULA)
Please read this eula carefully before ordering or downloading or using any software products of Opaque Productions, Inc. this End User License Agreement (this "agreement") is made by and between Opaque Productions Inc. a company registered in the state of California, ("Opaque"), and you, as either an individual or a single entity ("Licensee").
Important notice to all users: by downloading and/or using this software you acknowledge that you have read this EULA, understand it and agree to be bound by its terms and conditions. If you do not agree to the terms of this EULA do not download, install, copy or use the software.
Important notice to consumers who purchase software products direct from Opaque: You have the right to cancel your contract and obtain a full refund in accordance with clause 9. however you will lose this right once you install the software. This does not affect your consumer rights in relation to defective products or services.
1. Grant of License
Subject to all the terms of this Agreement, Opaque grants to Licensee a limited, non-transferable and non-exclusive license to download, install and use a machine readable enclosed software; including, but not limited to, one or more of the following: source code, object code, dynamic link libraries, statically, linked libraries, or unoptimized (debug) libraries, executables, header files, sample programs, utility programs, makefiles, project files and scripts (collectively, the "SOFTWARE") purchased by Licensee (the "Software") and any accompanying user guide and other documentation (the "Documentation"), solely for Licensee's own internal purposes (the "License"); provided, however, that Licensee's right to download, install and use the Software and the Documentation is limited to those rights expressly set out in this EULA.
Only to the extent that is proportionate to, and reasonably necessary to support, Licensee’s licensed use of the Software in accordance with the Agreement, Licensee may (provided valid license or activation keys have been obtained) install the Software on more than one computer, provided always that Licensee’s concurrent use of different installations of the Software does not exceed the number of valid Licenses that Licensee has paid for or licensed (as applicable). Except for one copy solely for backup purposes, Licensee may possess only the number of copies of the Product purchased or issued and may use each such copy on only one desktop computer and only in accordance with the terms expressly authorized herein.
2. License Models
For each Software product that you purchase or are issued from Opaque, the product will be licensed (and not sold) to you on the terms of one or more of the license models set out in this clause, and subject to the other terms and conditions of this EULA. Please note that some licensing models set out below do not apply to certain Software products of Opaque. Whichever licensing model applies, Licensee shall not at any one time use more copies of the Software than the total number of valid licenses purchased by or issued to Licensee.
(a) “Forever Node Locked License”
If Licensee purchases a Forever Node Locked License, Licensee will install and use only a single copy of the Software on only one computer at a time.
(b)“Forever Floating License”
If Licensee purchases a Floating License, use of the Software may be at any site in the Home Country.
(c)“For a While Rental Licence
If Licensee has purchased a Licence on a rental basis, the License shall be limited to the term of the rental as agreed in writing with Opaque after which it shall automatically expire.
(d) “Educational License”
If Licensee has purchased the Software on the discounted terms of the Opaque Education policy, Licensee warrants and represents to Opaque as a condition of the Educational License that: (i) (if Licensee is a natural person) he or she is a part-time or full-time student at the time of purchase and will not use the Software for any commercial, professional or for-profit purposes; (ii) (if the Licensee is not a natural person) it is an organization that will use the Software only for the purpose of training and instruction, and for no other purpose. Unless the Educational License is a Floating License, Licensee shall use the Software on only one computer at a time.
(e) “Trial License”
Licensee may register for a “Trial License” of the Software (not available for all products or in all regions or markets). A Trial License lasts a limited specified period on the expiry of which the Software will automatically cease to function. Unless the Trial License is a Floating License, Licensee shall use the Software on only one computer at a time.
f) “NFR License”
Licensee may purchase the Software at the special Not For Resale condition, as an “NFR License” (not available for all products or in all regions or markets). If in possession of an NFR License, Licensee warrants and represents to Opaque as a condition of the NFR License that (i) (if Licensee is a natural person) he or she will not use the Software for any commercial, professional or for-profit purposes; (ii) (if the Licensee is not a natural person) it is an organization that will use the Software only for the purpose of testing, research and development and demonstration, and for no other purpose. Licensee shall use the Software on only one computer at a time.
3. Restrictions on Use
Please note that in order to guard against unlicensed use of the Software, a license key or activation key is required to access and enable the Software. Licensee is authorized to use the Software in machine readable, object code form only (subject to clause 4), and Licensee shall not: (a) assign, sublicense, sell, distribute, transfer, pledge, lease, rent, lend, share or export the Software, the Documentation or Licensee's rights under this EULA; (b) alter or circumvent the license or activation keys or other copy protection mechanisms in the Software or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software; (c) implement or use any method or mechanism designed to enable product functionality not available in the Software (d) (subject to clause 4) modify, adapt, translate or create derivative works based on the Software or Documentation; (e) use, or allow the use of, the Software or Documentation on any project other than a project produced by Licensee (an "Authorized Project") or to provide a service (whether or not any charge is made) to any third party; (f) allow or permit anyone (other than Licensee and Licensee's authorized employees to the extent they are working on an Authorized Project) to use or have access to the Software or Documentation; (g) copy or install the Software or Documentation other than as expressly provided for in this EULA; or (h) take any action, or fail to take action, that could adversely affect the trademarks, service marks, patents, trade secrets, copyrights or other intellectual property rights of Opaque or any third party with intellectual property rights in the Software (each, a "Third Party Licensor"). For purposes of this clause 3, the term "Software" shall include any derivatives of the Software.
If the Software is moved from one computer to another, the substitution of machine unique signature or server ID is limited to two changes in any given calendar year, and may require a fee to be paid in certain circumstances.
4. Source Code
Notwithstanding that clause 1 defines “Software” as an object code version and that clause 3 provides that Licensee may use the Software in object code form only:
If Opaque has agreed to license to Licensee (including by way of providing upgrades, updates or enhancements/customization) source code or elements of the source code of the Software, the intellectual property rights in which belong either to Opaque or to a Third Party Licensor (“Source Code”), Licensee shall be licensed to use the Source Code as Software on the terms of this EULA and: (a) notwithstanding clause 3 (c), Licensee may use the Source Code at its own risk in any reasonable way for the limited purpose of enhancing its use of the Software solely for its own internal business purposes and in all respects in accordance with this EULA; (b) Licensee shall in respect of the Source Code comply strictly with all other restrictions applying to its use of the Software under this EULA as well as any other restriction or instruction that is communicated to it by Opaque at any time during the Agreement (whether imposed or requested by Opaque or by any Third Party Licensor);
(b) To the extent that the Software links to any open source software libraries (“OSS Libraries”) that are provided to Licensee with the Software, nothing in the Agreement shall affect Licensee’s rights under the licenses on which the relevant Third Party Licensor has licensed the OSS Libraries. To the extent that Third Party Licensors have licensed OSS Libraries on the terms of v2.1 of the Lesser General Public License issued by the Free Software Foundation (see http://www.gnu.org/licenses/lgpl-2.1.html) (the “LGPL”), those OSS Libraries are licensed to Licensee on the terms of the LGPL and are referred to in this clause 4.2 as the LGPL Libraries.
(c) notwithstanding any other term of the Agreement, Opaque gives no express or implied warranty, undertaking or indemnity whatsoever in respect of the Source Code, the OSS Libraries (including the LGPL Libraries), the LGPL Source or the Object, all of which are licensed on an “as is” basis, or in respect of any modification of the Source Code, the OSS Libraries (including the LGPL Libraries) or the LGPL Source made by Licensee (“Modification”). Licensee may not use the Object for any purpose other than its use of the Software in accordance with this EULA. Notwithstanding any other term of the Agreement, Opaque shall have no obligation to provide support, maintenance, upgrades or updates of or in respect of any of the Source Code, the OSS Libraries (including the LGPL Libraries), the LGPL Source, the Object or any Modification. Licensee shall indemnify Opaque against all liabilities and expenses (including reasonable legal costs) incurred by Opaque in relation to any claim asserting that any Modification infringes the intellectual property rights of any third party.
5. Product definitions; Forever, For a While, Renewal
If the license obtained under this Agreement is designated as a Rental or Subscription or Subscription renewal (“For a While License” or “For a While License Renewal”), then Licensee will also receive Upgrade and Support Services during the Term of the license and renewal. If the license obtained under this Agreement is designated as a Perpetual License (“Forever License), then, as part of the initial purchase of the Forever License, Licensee will be entitled to one (1) year of Upgrade and Support Services. If the license obtained under this Agreement is designated as a Maintenance renewal (“Forever License Annual renewal”), then Licensee will also receive Upgrade and Support Services during the Term of the renewal.
If the license obtained under this Agreement is designated as a Trial or Evaluation License , then, as part of the trial or evaluation of License, Licensee will be entitled to Upgrades and Support Services for the duration of the trial or evaluation.
All the license rights and limitations and restrictions in this Agreement on the Product also apply to documentation and examples made available by Opaque.
The Product licensed hereunder includes any updates made available to Licensee as part of Upgrade and Support Services. Opaque is not obligated to provide any updates or support if Licensee has not purchased Upgrade and Support Services or is not running a time based trial or evaluation.
6. License Fee
Licensee acknowledges that the rights granted to Licensee under this EULA are conditional on Licensee's timely payment of the license fee payable to Opaque in connection with the Agreement or, as the case may be, payable to Opaque’ reseller (the "License Fee"). License Fee shall be payable in full as one single payment. Licensee will be charged and agrees to pay to Opaque: (a) the License Fee as notified by Opaque (or its reseller) at the time of the initial purchase of the License; and (b) in respect of any Annual renewal for a License, the License Fee as notified by Opaque (or its reseller) on or about the applicable Renewal Date; in each case together with any/all applicable taxes or other duties or levies.
7. Auto Renewal
If Licensee has purchased a Forever Licence, the License Fee shall include a twelve (12) month annual Upgrades and Support Package for one year from the date of purchase. The Package shall be limited to the Initial 12 month Period and any/all Auto-renewal Periods (each as defined below) (together the “Renewal Period”) after which it shall automatically expire.
(a) The Upgrades and Support Package shall begin as soon as Opaque accepts Licensee’s order by issuing Licensee with a license or activation key (the “Renewal Start Date”) and shall continue for an initial period of twelve (12) months (the “Initial Renewal Period”) unless earlier terminated in accordance the terms of this EULA.
(b) Unless Licensee opts out of auto-renewal, upon the first anniversary of the Renewal Start Date and each subsequent anniversary (each a “Renewal Date”), Licensee’s Upgrades and Support Package shall renew automatically for a further twelve (12) months (each an “Auto-renewal Period”). Licensee’s Upgrades and Support Package will continue to auto-renew in this manner until Licensee opts out of auto-renewal or unless earlier terminated in accordance with the terms of this EULA.
(c) Prior to each Renewal Date, Opaque shall send you not less than two reminder emails to advise you that your Upgrades and Support Package is approaching auto-renewal to the contact email address as provided by Licensee. The first reminder email will be sent not less than sixty (60) days prior to the relevant Renewal Date. The second reminder email will be sent not less than thirty (30) days prior to the relevant Renewal Date.
(d) Opting Out of Auto-renewal. If Licensee wishes to opt out of auto-renewal then you must: (i) uncheck the auto renewal box against this package in your account on the Opaque website, or (ii) email firstname.lastname@example.org providing details of the renewal which you wish to opt out not less than seventy-two (72) hours prior to the relevant Renewal Date. Provided that Licensee notifies Opaque in accordance with the provisions of this clause, then your Upgrades and Support Package will not auto-renew and shall expire at the end of the then current Period.
8. Term; Renewal
If the Product license is a Forever License, then Licensee may use the Product perpetually. Upgrade and Support Services shall be provided for the term specified on the Invoice. After such initial term of Upgrade and Support Services, the term of any Upgrade and Support Services will be up for renewal each year for additional consecutive periods the same length as the initial term, Licensee has the right to renew the term or allow Upgrade and Support Services expire.
Opaque retains ownership of all Products and documentation and copies thereof, and reserves all rights not expressly granted in this Agreement. Licensee will maintain on any copies and any media the copyright notice and any other notices that appear on the Product and documentation. Licensee will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Product (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, use for time sharing or otherwise use or allow others to use a Product for the benefit of any third party, or (iii) use any Product, or allow the transfer, transmission, export, or re-export of any Product or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Office of Foreign Assets Control, British Government, or any other government agency.
10. Expiration; Termination
This Agreement will continue in effect for the Term. If Licensee allows a Forever License Renewal or For a While License to expire at the end of the applicable Term, no refunds will be given upon expiration and the expiration will take effect at the end of the then-current Term, as applicable. Except as otherwise expressly provided, the terms of this Agreement will survive expiration.
11. Limited Warranty and Disclaimer
Any liability of Opaque with respect to a product or the performance thereof under any warranty, negligence, strict liability or other theory will be limited exclusively to product repair or replacement or, if, in Opaque’s opinion, repair or replacement is impractical, to refund of the license fee. except for the foregoing, all products are provided “as is” without warranty of any kind including without limitation, any warranty of merchantability or fitness for a particular purpose, title or non-infringement. further, Opaque does not warrant results of use of that the products are bug free or that their use will be uninterrupted.
12. Limitation of Liability
Notwithstanding anything else in this agreement or otherwise, and except for bodily injury, Opaque will not be liable or obligated with respect to the subject matter of this agreement or under any contract, negligence, strict liability or other legal or equitable theory (i) for any amounts in excess in the aggregate of the fees paid to it here under with respect to the applicable product during the six month period prior to the cause of action; or (ii) for any cost of procurement of substitute goods, technology, services or rights; (iii) for any incidental or consequential damages; (iv) for interruption of use or loss or corruption of data; or (v) for any matter beyond its reasonable control.
Neither this Agreement nor the licenses granted hereunder are assignable or transferable by Licensee without the prior written consent of Opaque by operation or law (including a change of control) or otherwise; any attempt to do so will be void. Opaque may assign this Agreement in whole or in part. Any notice, report, approval or consent required or permitted hereunder will be in writing. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement will be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any waivers or amendments will be effective only if made in writing.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorney’s fees and costs in connection with such action. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
14. All Rights Reserved
Except as expressly provided otherwise in this agreement, title, ownership and all rights and interest including, without limitation, patents, copyrights, trademarks, trade secrets and other intellectual property rights, in and to Opaque and any authorized copies made by licensee remain with opaque. the software and documentation are licensed, not sold.
Copyright (c) 2019 Opaque Productions, Inc. All Rights Reserved. Do not duplicate.