This End-User License Agreement (EULA) is a legal agreement between you (either an individual or a single entity) (Licensee) and MicroSolutions for the software product identified above, which includes computer software and may include associated media, printed materials, and on-line or electronic documentation herein referred to as (ElderSuite). An amendment or addendum to this EULA may accompany ElderSuite.
YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING ELDERSUITE. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE ELDERSUITE.
1. LICENSE. MicroSolutions grants Licensee the non-exclusive right to use the enclosed Software.
a. Copies. Licensee may make a reasonable number of backup copies of the Software. All copies are subject to the provisions of this Agreement. Licensee must maintain an accurate record of the location of the copies of the Software that may be inspected by MicroSolutions at any time. Licensee must include MicroSolutions copyright notice on all copies.
b. Restrictions. The license granted to Licensee is subject to restrictions with regard to users who may use the Software, to companies whose data may be processed, and to transfer.
i) User Restrictions. Unless agreed otherwise, Licensee has a single-facility license. Only one facility may use the software at any time. The Software may be transferred to multiple computers provided it is used only by one facility at any time. Also, the Software may reside on multiple servers or workstations on the network provided it is used at any time only by the maximum number of facilities for which licenses have been purchased. If Licensee has purchased with multi-facility rights (multiple facilities), the Software may be used for the maximum number of facilities for which licenses have been purchased. If Licensee has expanded from a single-facility to a multi-facility license, the multi-facility restrictions supersede the single-facility restrictions.
ii) Company Restrictions. Licensee may use the Software only to process the data for Licensee. THE SOFTWARE MAY NOT BE USED TO PROCESS THE DATA OF ANY OTHER FACILITY, ENTITY OR TO OPERATE A SERVICE BUREAU.
iii) Transfer Restrictions. Licensee shall not grant sublicenses, assign or transfer (including transfer by rental) the Software or use the Software to benefit any third party without the prior written consent of MicroSolutions.
c. Ownership. MicroSolutions (or its licensors) retain ownership of the Software and accompanying documentation and all rights not specifically granted to Licensee. Licensee may not modify, adapt, translate, reverse engineer, decompile, disassemble or create derivative works based on the Software, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation. Licensee agrees to take any step necessary to protect the proprietary rights of MicroSolutions and its licensors. Licensee will, at Licensee's own cost and expense, protect and defend the ownership of MicroSolutions and its licensors in the Software and documentation against all claims, liens and legal processes of third parties of Licensee, including creditors of Licensee, and must keep the Software free and clear of any such claims, liens and licenses.
d. Enhancement Plan. Licensee purchases a subscription to the Software Enhancement Program; MicroSolutions will provide Licensee with all refinements and added features to the software, which are released during subscription period beginning with the date of purchase. Enhancement plans for any future subscription periods are subject to a separate agreement, based upon the then-current MicroSolutions enhancement plan list price, unless the Licensee has purchased a subscription license, in which case Licensee is required to subscribe to MicroSolutions support and enhancement program for the entire term of the subscription license.
e. Support and Services. Support for the Software is available from MicroSolutions.
2. ADDITIONAL SOFTWARE. This EULA applies to updates or supplements to the original ElderSuite provided by MicroSolutions, unless we provide other terms along with the update or supplement.
3. LIMITATION ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Product, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation.
5. TERMINATION. Licensee may terminate this Agreement by destroying or returning to MicroSolutions the Software and all copies thereof. MicroSolutions may terminate this Agreement if Licensee breaches any material representation, warranty, obligation or provision of this Agreement and fails to cure such breach within thirty (30) days of notice by MicroSolutions. In the event Licensee has licensed the software on a subscription basis, Licensee agrees to pay the applicable license fees for the entire subscription period agreed between the parties. Licensee may not terminate the Agreement prior to the end of term unless Licensee pays the fees for the remaining term of the license. MicroSolutions may terminate this Agreement if Licensee fails to make the required subscription payments. Upon termination, Licensee shall promptly return to MicroSolutions all copies of the Software. Termination of this Agreement does not affect or terminate any agreement or commitments Licensee may have with other entities, including, but not limited to, application service providers or leasing companies. Without prejudice to any other rights, MicroSolutions may cancel this EULA if you do not abide by the terms and conditions of this EULA, in which case you must destroy all copies of the Product and all of its component parts.
6. CONSENT TO USE OF DATA. You agree that MicroSolutions and its affiliates may collect and use technical information you provide as a part of support services related to ElderSuite. MicroSolutions agrees not to use this information in a form that personally identifies you.
7. NOT FOR RESALE SOFTWARE. ElderSuite is identified as Not for Resale or NFR, may not be resold, transferred or used for any purpose other than demonstration, test or evaluation.
8. LIMITED WARRANTY FOR SOFTWARE ELDERSUITE ACQUIRED IN THE US.
MicroSolutions warrants that the ElderSuite will perform substantially in accordance with the accompanying materials for a period of ninety days from the date of receipt. If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY (90) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to ElderSuite, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the ninety day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory.
LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by MicroSolutions, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if ElderSuite does not meet MicroSolutions' Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Section 11 below (Exclusion of Incidental, Consequential and Certain Other Damages) are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have others, which vary from state/jurisdiction to state/jurisdiction. YOUR EXCLUSIVE REMEDY. MicroSolutions' and its suppliers' entire liability and your exclusive remedy shall be, at MicroSolutions' option from time to time exercised subject to applicable law, (a) return of the price paid (if any) for ElderSuite, or (b) repair or replacement of ElderSuite, that does not meet this Limited Warranty and that is returned to MicroSolutions with a copy of your receipt. You will receive the remedy elected by MicroSolutions without charge, except that you are responsible for any expenses you may incur (e.g. cost of shipping ElderSuite to MicroSolutions). This Limited Warranty is void if failure of ElderSuite has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement of ElderSuite will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United States, neither these remedies nor any ElderSuite support services offered by MicroSolutions are available without proof of purchase. To exercise your remedy, contact: MicroSolutions, P.O. Box 290635, Kerrville, TX 78028.
9. DISCLAIMER OF WARRANTIES. The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties (if any) created by any documentation or packaging. Except for the Limited Warranty and to the maximum extent permitted by applicable law, MicroSolutions provide ElderSuite and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the ElderSuite, and the provision of or failure to provide support services. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO ELDERSUITE.
10. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MICROSOLUTIONS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE ELDERSUITE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF MICROSOLUTIONS OR ANY SUPPLIER, AND EVEN IF MICROSOLUTIONS OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of MicroSolutions and any of its suppliers under any provision of this EULA and your exclusive remedy for all of the foregoing (except for any remedy of repair or replacement elected by MicroSolutions with respect to any breach of the Limited Warranty) shall be limited to the greater of the amount actually paid by you for ElderSuite or U.S.$5.00. The foregoing limitations, exclusions and disclaimers (including Sections 11, 12, and 13 above) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
13. APPLICABLE LAW. This EULA is governed by the laws of the State of Texas. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
14. ENTIRE AGREEMENT. This EULA (including any addendum or amendment to this EULA which is included with the Product) is the entire agreement between you and MicroSolutions relating to ElderSuite and the support services (if any) and they it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to ElderSuite or any other subject matter covered by this EULA. To the extent the terms of any MicroSolutions policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. In the event that any of the terms of this Agreement are in conflict with any rule of law or statutory provision or otherwise unenforceable under the laws or regulations of any government or subdivision thereof, such terms shall be deemed stricken from this Agreement. The parties will replace a severed provision by a provision, which is closest to the intent of the parties.
15. ElderSuite is protected by copyright and other intellectual property laws and treaties. MicroSolutions owns the title, copyright, and other intellectual property rights in ElderSuite. ElderSuite is licensed, not sold.