Terms Of Service:
ERICDWHEELER.COM WEBSITE/SOFTWARE TERMS OF SERVICE
ERICDWHEELER.COM, a New York State corporation ("ERICDWHEELER.COM"), welcomes you as a user of the ERICDWHEELER.COM services. The ERICDWHEELER.COM and it's requisite services provides information and resources to you (the "Services") subject to the following END-USER LICENSE AGREEMENT, which may be updated at any time without notice to you.
END-USER LICENSE AGREEMENT
This End-User License Agreement ("TOS") is a binding legal agreement between you (either an individual or a legal entity) and ERICDWHEELER.COM, the corporate parent of ERICDWHEELER.COM (both ERICDWHEELER.COM, Inc. and ERICDWHEELER.COM shall be referred to as "ERICDWHEELER.COM"). By signing this EULA OR by downloading, installing, accessing or using any ERICDWHEELER.COM software product you will be bound by the terms of this EULA. If you do not agree to the terms of this EULA, ERICDWHEELER.COM is not willing to license any right to use or sublicense any software product to you. In such event, you may not download, install, access, use or copy any ERICDWHEELER.COM software product, and you should promptly contact your provider for instructions on how to obtain a refund of fees paid by you, if any.
As used in this EULA, the term "SOFTWARE PRODUCT" refers to any and all of the following ERICDWHEELER.COM software products, including all associated media, printed materials and any "online" or electronic documentation: ERICDWHEELER.COM (EDW.COM).
SOFTWARE PRODUCT LICENSE
The SOFTWARE PRODUCT is licensed, not sold. Except for the limited license granted in this EULA, ERICDWHEELER.COM retains all rights, title and interest in the SOFTWARE PRODUCT, all copies thereof, and all proprietary rights in the SOFTWARE PRODUCT, including copyrights, patents, trademarks and trade secret rights.
GRANT OF LICENSE
During the term of this EULA, ERICDWHEELER.COM grants you a personal, nontransferable, nonexclusive and non-assignable license to use the SOFTWARE PRODUCT in accordance with its documentation as follows:
. You may install, use, access, display, run, or otherwise interact with ("RUN") one copy of the SOFTWAREPRODUCT on a single computer or workstation.
. You may RUN the SOFTWARE PRODUCT on a network, provided that you have a licensed copy of the SOFTWARE PRODUCT for each computer or workstation that can access the SOFTWARE PRODUCT over that network.
LIMITATIONS ON LICENSE
The license granted to you in this EULA is restricted as follows:
. Special Versions. Notwithstanding the "GRANT OF LICENSE" section of this document, if the Sales Agreement identifies the SOFTWARE PRODUCT as "NFR" or "Not for Resale," then your use of the SOFTWARE PRODUCT is limited to demonstration, test and evaluation purposes, and if the Sales Agreement identifies the SOFTWARE PRODUCT as "AE" or "Academic Edition," then you may not RUN the SOFTWARE PRODUCT at all unless ERICDWHEELER.COM has acknowledged in writing that you are a qualified educational user.
. Evaluation Versions. Notwithstanding the "GRANT OF LICENSE" section of this document, if you RUN an evaluation version of the SOFTWARE PRODUCT, then your use of the software is limited to demonstration, test and evaluation purposes. An evaluation version of the SOFTWARE PRODUCT may only be RUN by the person or Organization whose name and address were registered at the time the software was installed, or by the addressee in the event that ERICDWHEELER.COM delivered the SOFTWARE PRODUCT directly to a person or Organization. Furthermore, an evaluation version of the SOFTWARE PRODUCT may only be RUN on computers, workstations or networks belonging to that registered person or Organization.
. Limitations on Copying and Distribution. You may not copy or distribute the SOFTWARE PRODUCT except as expressly permitted by this EULA. This software product is not distributable or otherwise available free of license fees and/or royalty.
. Limitations on Reverse Engineering and Modification. You may not reverse engineer, decompile, disassemble, modify or create works derivative of the SOFTWARE PRODUCT except as expressly permitted by this EULA. You may not alter or modify any disabling mechanism which may be resident in the SOFTWARE PRODUCT.
. Sublicense, Rental and Third Party Use. You may not assign, sublicense, rent, timeshare, loan, lease, or otherwise transfer the SOFTWARE PRODUCT or directly or indirectly permit any third party to use or copy the SOFTWARE PRODUCT except as expressly permitted by this EULA.
. Benchmark Testing. You may not disclose the results of any benchmark tests of the SOFTWARE PRODUCT to any third party without prior written approval from ERICDWHEELER.COM.
. Consent to Use of Data. ERICDWHEELER.COM may use any technical information provided to ERICDWHEELER.COM in connection with any SOFTWARE PRODUCT support and maintenance services provided by ERICDWHEELER.COM, including for product development and support.
YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE PRODUCT MAY HAVE A MECHANISM WHEREBY ERICDWHEELER.COM CAN DISABLE THE SOFTWARE PRODUCT. YOU AGREE THAT ERICDWHEELER.COM MAY USE ANY SUCH MECHANISM IN THE EVENT OF YOUR BREACH OF THIS EULA.
ACTIVATION & COMPLIANCE MECHANISM
You acknowledge and agree that the SOFTWARE PRODUCT may incorporate a mechanism that sends SOFTWARE PRODUCT activation and EULA compliance information to ERICDWHEELER.COM. You acknowledge and agree that the SOFTWARE PRODUCT may have a mechanism that interacts with ERICDWHEELER.COM's license activation servers.
The SOFTWARE PRODUCT will be under Maintenance for any period of time for which such Maintenance has been purchased from ERICDWHEELER.COM. Maintenance entitles you to receive any new SOFTWARE PRODUCT updates released within the Maintenance period. You are also entitled to submit support issues to ERICDWHEELER.COM under the terms of the then prevailing support policy. You must comply with ERICDWHEELER.COM's then prevailing product registration policies in order to qualify for support and updates.
. Breach of EULA. Without prejudice to any other rights, ERICDWHEELER.COM may immediately and without notice terminate this EULA and all rights granted hereunder if you fail to comply with any of the terms and conditions of this EULA. You agree that ERICDWHEELER.COM may, under certain circumstances and without prior notice, immediately terminate your account. Cause for such termination shall include, but not be limited to, (a) breaches or violations of these Terms of Service or other agreements or guidelines related to your use of the SOFTWARE PRODUCT and/or Services, (b) requests by law enforcement or other government agencies, (c) a request by you, (d) discontinuance or material modification to the SOFTWARE PRODUCT and/or Services (or any part thereof), (e) unexpected technical or security issues or problems, (f) engagement by you in fraudulent or illegal activities, and/or (g) nonpayment of any fees owed by you in connection with the SOFTWARE PRODUCT and/or Services. Further, you agree that all terminations for cause shall be made in ERICDWHEELER.COM's sole discretion and that ERICDWHEELER.COM shall not be liable to you or any third party for any termination of your account.
. Infringement Claims. In the event of a claim of intellectual property infringement by any third party relating to the SOFTWARE PRODUCT ("INFRINGEMENT CLAIMS"), ERICDWHEELER.COM reserves the right to immediately terminate this EULA and the rights granted hereunder.
. Licensee's Termination Obligations. In the event of any expiration or termination of this EULA for any reason, you must remove and destroy all copies of the SOFTWARE PRODUCT and all of its component parts.
You may not export or re-export the SOFTWARE PRODUCT without the prior written approval of ERICDWHEELER.COM. If the SOFTWARE PRODUCT was purchased in the United States, you agree to comply with all applicable United States laws and regulations pertaining to export controls. If the SOFTWARE PRODUCT was purchased outside the United States, you may not re-export the SOFTWARE PRODUCT except as permitted by the laws of the United States and the laws of the jurisdiction in which you purchased the SOFTWARE PRODUCT.
U.S. GOVERNMENT RESTRICTED RIGHTS
The SOFTWARE PRODUCT and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (a) through (d) of the Commercial Computer Software -Restricted Rights at 48 CFR 52.227-19, and in similar clauses in the NASA FAR Supplement, as applicable. Manufacturer is ERICDWHEELER.COM, Inc., 68 White Street, 2nd Floor, Red Bank, NJ 07701.
ERICDWHEELER.COM warrants that the SOFTWARE PRODUCT, in its unmodified form as initially delivered or made available to you or your agent, and when used in accordance with this EULA and its documentation, as such documentation is updated from time to time by ERICDWHEELER.COM ("DOCUMENTATION"), will perform substantially in accordance with the DOCUMENTATION for a period of ninety (90) days from the date of your receipt or first use of the SOFTWARE PRODUCT. ERICDWHEELER.COM and its licensors sole and exclusive liability, and your sole and exclusive remedy for the breach of the limited warranty set forth in this paragraph shall be, at ERICDWHEELER.COM's option: (a) return of the initial license fee paid by you, if any, for the SOFTWARE PRODUCT; (b) repair or replacement of the SOFTWARE PRODUCT. Any replacement product shall be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. To receive any remedy under this paragraph, if requested by ERICDWHEELER.COM, you must return the defective SOFTWARE PRODUCT to ERICDWHEELER.COM at your own expense.
In the event that ERICDWHEELER.COM determines that any reported problem with the SOFTWARE PRODUCT is due to your fault,
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ERICDWHEELER.COM AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. ERICDWHEELER.COM AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS; (V) ANY ERRORS IN THE SERVICES WILL BE CORRECTED; OR (VI) THAT ANY OR ALL OF THE FUNCTIONALITY OF THE SERVICES WILL BE COMPATIBLE WITH ANY SOFTWARE OR HARDWARE USED BY YOU TO ACCESS THE SERVICES.
c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
d. FURTHERMORE, ERICDWHEELER.COM DISCLAIMS ANY WARRANTY AS TO THE POTENTIAL PROFITABILITY OF THE USE OF THE SERVICES, OR THE POTENTIAL FOR SUCCESS OF ANY ADVERTISING OR MARKETING CAMPAIGN INCORPORATING ANY OF THE MATERIALS GENERATED THROUGH THE USE OF THE SERVICES, AND YOU HAVE RELIED UPON AND WILL RELY UPON YOUR OWN EVALUATION OF THE MARKET WITH RESPECT TO SUCH MATTERS AND THE USE OF THE MATERIALS GENERATED THROUGH THE USE OF THE SERVICES.
e. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ERICDWHEELER.COM OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE OR IN YOUR SERVICE AGREEMENT.
f. To pay ERICDWHEELER.COM for its correction efforts in accordance with its standard rates.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL ERICDWHEELER.COM OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS BE LIABLE TO ANY USER ON ACCOUNT OF THAT USER'S USE OR MISUSE OF OR RELIANCE ON THE ERICDWHEELER.COM SERVICES ARISING FROM ANY CLAIM RELATING TO THE USE OF THE SERVICES PURSUANT TO THESE TERMS OF SERVICE OR ANY OTHER AGREEMENT BETWEEN ERICDWHEELER.COM AND YOU. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (EVEN IF ERICDWHEELER.COM OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE ERICDWHEELER.COM SERVICES, FROM INABILITY TO USE THE ERICDWHEELER.COM SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE ERICDWHEELER.COM SERVICES (INCLUDING ANY SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED AS PART OF OR IN CONNECTION WITH THE ERICDWHEELER.COM SERVICES OR WEBSITE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE ERICDWHEELER.COM SERVICES OR WEBSITE, AS WELL AS BY REASON OF ANY INFORMATION RECEIVED THROUGH OR ADVERTISED ON THE ERICDWHEELER.COM SERVICES OR WEBSITE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE ERICDWHEELER.COM SERVICES OR WEBSITE. THESE LIMITATIONS OF LIABILITY SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATIONS SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE ERICDWHEELER.COM SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE ERICDWHEELER.COM SERVICES OR WEBSITE. SUCH LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
Some states or other jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitations and exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties. Without limiting the foregoing, under no circumstances shall ERICDWHEELER.COM or its subsidiaries, affiliates, officers, employees, agents, partners or licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
TO THE EXTENT THAT ERICDWHEELER.COM OR ANY OF ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS OR LICENSORS IS FOUND LIABLE FOR A CLAIM OF ANY KIND ARISING AS A RESULT OF, OR RELATED TO, THE SERVICES PROVIDED HEREUNDER (OR THE FAILURE TO PROVIDE SUCH SERVICES), WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), PURSUANT TO ANY WARRANTY NOT SPECIFICALLY DISCLAIMED HEREBY (OR THE DISCLAIMER OF WHICH IS NOT PERMITTED), OR OTHERWISE, DAMAGES SHALL BE LIMITED TO MONETARY DAMAGES, AND THE AGGREGATE AMOUNT THEREOF FOR ALL CLAIMS SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE PAYMENTS RECEIVED FROM YOU BY ERICDWHEELER.COM FOR THE MOST RECENT SIX (6) MONTH PERIOD PRIOR TO SUCH DETERMINATION.
MODIFICATIONS TO SERVICES
ERICDWHEELER.COM reserves the right at any time and from time to time to modify (including, without limitation, any modification or redesign of the organization, look, feel, navigation or other elements of the SOFTWARE PRODUCT, Services or the Web site used to provide the Services, including the addition or deletion of content or screens for delivery of the SOFTWARE PRODUCT and/or Services) or discontinue, temporarily or permanently, the SOFTWARE PRODUCT and/or Services (or any part thereof) with or without notice. You agree that ERICDWHEELER.COM shall not be liable to you or to any third party for any modification, suspension or discontinuance of the SOFTWARE PRODUCT and/or Services.
NO OTHER WARRANTIES
EXCEPT AS SET FORTH IN THE "LIMITED WARRANTY" SECTION OF THIS DOCUMENT, THE SOFTWARE PRODUCT IS PROVIDED ON AN "AS IS" BASIS AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ERICDWHEELER.COM AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SOFTWARE PRODUCT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ERICDWHEELER.COM DOES NOT WARRANT THAT THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE PRODUCT WILL BE CORRECTED. FURTHER, ERICDWHEELER.COM DOES NOT WARRANT THAT THE SOFTWARE PRODUCT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ERICDWHEELER.COM OR ANY OF ERICDWHEELER.COM'S RESELLERS SHALL CREATE A ERICDWHEELER.COM WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ERICDWHEELER.COM OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE PRODUCT, EVEN IF ERICDWHEELER.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ERICDWHEELER.COM'S ENTIRE LIABILITY UNDER THIS EULA SHALL BE LIMITED TO THE INITIAL FEE PAID BY YOU FOR THE SOFTWARE PRODUCT.
You agree to indemnify, defend and hold ERICDWHEELER.COM and its officers, directors, shareholders, agents and affiliates harmless from and against any and all third party claims of any kind (along with attorney's fees and litigation costs) arising out of, resulting from, or in connection with your breach of this EULA or your use or misuse of the SOFTWARE PRODUCT and/or Services, including but not limited to, claims for personal injury or property damage.
GOVERNING LAW; Entire Agreement
This EULA is governed by and construed in accordance with the laws of the State of NEW York, U.S.A as applied to agreements entered into and wholly performed within New York between New York residents. The 1980 U.N. Convention on Contracts for the International Sale of Goods shall not govern this EULA. Any action or proceeding brought by either party hereto shall be brought only in a state or federal court of competent jurisdiction located in the County of Monmouth, State of New York and the parties submit to the in persona jurisdiction of such courts for purposes of any action or proceeding.
FORCE MAJEURE ERICDWHEELER.COM shall not be responsible for any delays, errors, failures to perform, interruptions or disruptions in the SOFTWARE PRODUCT and/or SERVICE caused by any acts of God, strikes, lockouts, riots, acts of war, changes in law or regulations, fire, flood, earthquake, storm, power failure or failures of the Internet.