IMPORTANT–READ CAREFULLY: THIS END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND TERRAMASTER, INC. AND ITS AFFILIATES, INCLUDING TERRAMASTER AMERICAN CORP, TERRAMASTER GMBH, AND TERRAMASTER UK LTD.(COLLECTIVELY, "TERRAMASTER") FOR ANY TERRAMASTER SOFTWARE, TOGETHER WITH ANY OTHER ASSOCIATED FIRMWARE, MEDIA, PRINTED MATERIALS AND "ONLINE" OR ELECTRONIC DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE") AVAILABLE FOR DOWNLOAD AT WWW.TERRA-MASTER.COM OR PROVIDED WITH OR INSTALLED ON A TERRAMASTER PRODUCT (THE "PRODUCT").
YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY OPENING THE PACKAGE CONTAINING THE SOFTWARE, INSTALLING THE SOFTWARE NOT OTHERWISE PRE-INSTALLED BY TERRAMASTER ON A PRODUCT OR OTHERWISE USING A PRODUCT THAT INCLUDES PRE-INSTALLED SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT OPEN THE BOX CONTAINING THE PRODUCT, INSTALL THE SOFTWARE OR USE THE PRODUCT CONTAINING THE SOFTWARE. INSTEAD, YOU MAY RETURN THE PRODUCT TO THE RESELLER WHERE YOU PURCHASED IT FOR A REFUND IN ACCORDANCE WITH THE RESELLER'S APPLICABLE RETURN POLICY.
Section 1. Limited Software License. Subject to the terms and conditions of this EULA, TerraMaster grants you a limited, non-exclusive, non-transferable, personal license to install, run and use one copy of the Software on the Product solely in connection with your authorized use of the Product.
Section 2. Documentation. You may make and use a reasonable number of copies of any documentation provided with the Software; provided, that such copies will only be used for internal business purposes and are not to be republished or redistributed (either in hard copy or electronic form) to any third party.
Section 3. Backup. You may make a reasonable number of copies of the Software for backup and archival purposes.
Section 4. Updates. Any software provided to you by TerraMaster or made available on the TerraMaster website at www.terra-master.com ("Website") that updates or supplements the original Software is governed by this EULA unless separate license terms are provided with such updates or supplements, in which case, such separate terms will govern.
Section 5. License Limitations. The license set forth in Section 1 applies only to the extent you have ordered and paid for the Product and it states the entirety of your rights with respect to the Software. TerraMaster reserves all rights not expressly granted to you in this EULA. Without limiting the foregoing, you will not, and you will not authorize or permit any third party to: (a) use the Software for any purpose other than in connection with the Product; (b) license, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Software or use the Software in any commercial hosted or service bureau environment; (c) reverse engineer, decompile, disassemble or attempt to discover the source code for or any trade secrets related to the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (d) adapt, modify, alter, translate or create any derivative works of the Software; (e) remove, alter or obscure any copyright notice or other proprietary rights notice on the Product; or (f) circumvent or attempt to circumvent any methods employed by TerraMaster to control access to the components, features or functions of the Product or Software.
Section 6. Open Source. The Software may contain components licensed to TerraMaster under the GNU General Public License ("GPL Components"), currently available at http://www.gnu.org/licenses/gpl.html. The terms of the GPL will control solely with respect to the GPL Components to the extent that this EULA conflicts with the requirements of the GPL with respect to your use of the GPL Components, and, in such event, you agree to be bound by the GPL with respect to your use of such components.
Section 7. Audit. TerraMaster will have the right to audit your compliance with the terms of this EULA. You agree to grant access to TerraMaster to facilities, equipment, books, records and documents and to otherwise reasonably cooperate with TerraMaster in order to facilitate any such audit.
Section 8. Ownership. The Software is valuable property of TerraMaster and its licensors and is protected by copyright and other intellectual property laws and treaties. TerraMaster or its licensors own all right, title and interest in and to the Software and all copyright and other intellectual property rights in the Software.
Section 9. Limited Warranty. TerraMaster warrants that for a period of ninety (90) days after either your (a) installation of the Software on Products that do not include pre-installed Software or (b) use of a Product that includes pre-installed Software, as applicable, (the "Warranty Period"), the Software will substantially conform to TerraMaster's published specifications for the Software, if any, or otherwise set forth on the Website. TerraMaster will use commercially reasonable efforts to, in TerraMaster's sole discretion, either correct any such nonconformity in the Software or replace any Software that fails to comply with the foregoing warranty, provided that you give TerraMaster written notice of such noncompliance within the Warranty Period. The foregoing warranty does not apply to any noncompliance resulting from any: (w) use, reproduction, distribution or disclosure not in accordance with this EULA; (x) any customization, modification or other alteration of the Software by anyone other than TerraMaster; (y) combination of the Software with any product, services or other items provided by anyone other than TerraMaster; or (z) your failure to comply with this EULA.
Section 10. Support. During the Warranty Period, TerraMaster will make available to you the support services. Following the expiration of the applicable Warranty Period, support for Software may be available from TerraMaster upon written request.
Section 11. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE, TERRAMASTER AND ITS SUPPLIERS PROVIDE THE SOFTWARE "AS IS" AND WITH ALL FAULTS. TERRAMASTER AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE AND NONINFRINGEMENT, WITH REGARD TO THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, TERRAMASTER DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE OF BUGS, ERRORS, VIRUSES OR OTHER DEFECTS.
Section 12. Disclaimer of Certain Damages. IN NO EVENT WILL TERRAMASTER OR ITS LICENSORS BE LIABLE FOR THE COST OF COVER OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, INFORMATION, REVENUE, PROFIT OR BUSINESS) ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE OR OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA OR THE SOFTWARE, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY EVEN IF TERRAMASTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Section 13. Limitation of Liability. TERRAMASTER'S AND ITS SUPPLIERS' LIABILITY ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE OR OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA OR THE SOFTWARE IS LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE PRODUCT REGARDLESS OF THE AMOUNT OF DAMAGES YOU MAY INCUR AND WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY. The foregoing disclaimer of warranties, disclaimer of certain damages and limitation of liability will apply to the maximum extent permitted by applicable law. The laws of some states/jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of certain damages. To the extent that those laws apply to this EULA, the exclusions and limitations set forth above may not apply to you.
Section 14. Export Restrictions. You acknowledge that the Software is subject to U.S. export restrictions. You agree to comply with all applicable laws and regulations that apply to the Software, including without limitation the U.S. Export Administration Regulations.
Section 15. U.S. Government License Rights. All Software provided to the U.S. Government is provided with the commercial license rights and restrictions described in this EULA. By installing, copying or using the Software, the U.S. Government agrees that the Software is "commercial computer software" or "commercial computer software documentation" within the meaning of FAR Part 12.
Section 16. Termination. Without prejudice to any other rights, TerraMaster may terminate this EULA if you do not abide by the terms and conditions contained herein. In such event, you must cease use of the Software and destroy all copies of the Software and all of its component parts.
Section 17. Assignment. You may not transfer or assign your rights under this EULA to any third party. Any such transfer or assignment in violation of the foregoing restriction will be void.
Section 18. Applicable Law. Unless expressly prohibited by local law, this EULA is governed by the laws of the State of Washington, U.S.A. without regard to any conflict of law principles to the contrary. The 1980 U.N. Convention on Contracts for the International Sale of Goods or any successor thereto does not apply.
Section 19. Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Warranty, the Software or services provided by TerraMaster with respect to the Software or the relationship between you and TerraMaster will be resolved exclusively and finally by arbitration under the current commercial rules of the American Arbitration Association if you reside in the United States, except as otherwise provided below. In such cases, the arbitration will be conducted before a single arbitrator, and will be limited solely to the dispute between you and TerraMaster. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The arbitration shall be held in King County, Washington, U.S.A. by submission of documents, by telephone, online or in person as determined by the arbitrator at the request of the parties. The prevailing party in any arbitration or legal action occurring within the United States or otherwise shall receive all costs and reasonable attorneys' fees, including any arbitration fee paid by the prevailing party. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered thereon in any court of competent jurisdiction. You understand that, in the absence of this provision, you would have had a right to litigate any such dispute, controversy or claim in a court, including the right to litigate claims on a class-wide or class-action basis, and you expressly and knowingly waives those rights and agrees to resolve any disputes through binding arbitration in accordance with the provisions of this Section 19. If you do not reside within the United States, any dispute, controversy or claim described in this Section shall be finally resolved by arbitration conducted by three neutral arbitrators in accordance with the procedures of the R.O.C. Arbitration Law and related enforcement rules. The arbitration shall take place in Taipei, Taiwan, R.O.C., and the arbitration proceedings shall be conducted in English or, if both parties so agree, in Mandarin Chinese. The arbitration award shall be final and binding on the parties and may be enforced in any court having jurisdiction. Nothing in this Section shall be deemed to prohibit or restrict TerraMaster from seeking injunctive relief or seeking such other rights and remedies as it may have at law or equity for any actual or threatened breach of any provision of this EULA relating to TerraMaster's intellectual property rights.
Section 20. Attorneys' Fees. In any arbitration, mediation, or other legal action or proceeding to enforce rights or remedies under this EULA, the prevailing party will be entitled to recover, in addition to any other relief to which it may be entitled, costs and reasonable attorneys' fees.
Section 21. Severability. If any provision of this EULA is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this EULA will remain in full force and effect.
Section 22. Entire Agreement. This EULA sets forth the entire agreement of TerraMaster and you with respect to the Software and the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements whether written or oral. No amendment, modification or waiver of any of the provisions of this EULA will be valid unless set forth in a written instrument signed by the party to be bound thereby.