End User License Agreement
NuSphere Commercial Component License Agreement
CAUTION: CAREFULLY READ THE TERMS AND CONDITIONS OF THIS
AGREEMENT. BY CLICKING ON THE "ACCEPT" BUTTON, YOU ARE
CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO
THIS AGREEMENT. NUSPHERE CORPORATION ("NUSPHERE") IS
ONLY WILLING TO PROVIDE THE PRODUCT TO YOU UNDER THESE
TERMS AND CONDITIONS. YOUR ACT OF CLICKING THE "ACCEPT"
BUTTON AND/OR ANY USE BY YOU OF THE PRODUCT WILL SIGNIFY
YOUR AGREEMENT TO BE BOUND BY THESE TERMS AND
CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND
CONDITIONS, CLICK THE "DENY" BUTTON AND DO NOT PROCEED
WITH THE INSTALLATION OF THE PRODUCT. YOU SHOULD
PROMPTLY RETURN THE PRODUCT TO NUSPHERE OR THE DEALER
FROM WHICH IT WAS ACQUIRED FOR A FULL REFUND. THE TERM
"PROMPTLY" AS USED HEREIN SHALL MEAN NO LATER THAN SIXTY
(60) DAYS FOLLOWING THE DELIVERY OF THE PRODUCT TO YOU.
This End User License, as herein defined, and any
updates thereto, (the "Agreement") is a legal contract
between you ("User") and NuSphere Corporation
("NuSphere") with regard to the NuSphere Product, as
herein defined ("Product").
1.1 "Product" shall mean the software contained on the
media provided to User, together with any documentation
provided by NuSphere. While the Product may contain
intellectual property created and licensed by various
third parties, for purposes of this Agreement, "Product"
DOES NOT include various "Open Source or Free Software
Components" as defined below which may also be packaged,
distributed or otherwise provided together with the
1.2 "Open Source or Free Software Components" shall mean
software components provided on the same medium but
generally in a different directory from the Product and
are not licensed under this Agreement, but licensed
according to license terms provided with the components.
Generally a file in the individual component source or
product directory named README, LICENSE, or COPYING
provides the specific license details.
1.3 "Named User" shall mean the individual specifically
identified by the User as the sole holder of a Named
User License. A Named User means one specifically
identified individual authorized to access the Product.
The individual Named Use r may access only the Product
for which he or she has obtained a Named User License.
1.4 "Named User License" shall mean authorized use of
the Product by a Named User for the sole purpose of
designing, developing, testing and/ or deploying
2.0 Responsibilities of the User. The User must read and
agree to be bound by the terms of this Agreement. If the
User does not agree with the license terms contained
herein, the User may return the Product to NuSphere or
the reseller from whom it was purchased, for a full
3.0 License Grant.
3.1 In exchange for User's payment of the appropriate
license fee, NuSphere grants each User a perpetual,
non-exclusive, non-transferable (except as granted in
section 11.5) limited Named User License, subject to the
terms and conditions herein set forth. The sharing of a
Named User License by more than one individual is
expressly prohibited and is a material breach of this
Agreement. In addition, a Named User License may not be
transferred from one individual to another unless the
original Named User no longer requires, and is no longer
permitted, access to the Product and User specifically
identifies the new individual who will subsequently act
as the Named User You agree that you will not designate
more Named Users than the number of Named User Licenses
that NuSphere or its authorized reseller has expressly
granted to you and you will not allow the Product to be
used by any individuals other than the Named Users
designated by you from time to time.
You agree to maintain accurate records of the Named User
designated by you to use the Product under each Named
User License you hold.
3.2 NuSphere retains all legal rights to which it is
entitled, either by copyright law or any other federal
or state laws, not expressly granted to the User in
THIS LICENSE DOES NOT APPLY IN ANY WAY TO OPEN SOURCE OR
FREE SOFTWARE COMPONENTS THAT MA Y BE DISTRIBUTED OR
OTHERWISE PROVIDED WITH THIS PRODUCT.
4.0 Ownership of the Product. User owns the physical
media on which the Product is fixed or recorded, but
does not own title to or any intellectual property
rights in the Product. NuSphere and/or its third party
contributors, own title and all intellectual property
rights in the Product, including the copyright and the
right to trade secret protection.
5.0 Restrictions on Use and Distribution; Preparation of
Copies. User must reproduce the copyright notices found
on the Product, including any notices of third party
contributors, on all copies of the Product. Under no
circumstance may the User remove any copyright notices
or proprietary markings from any copy. Copies of the
Product made or used for any purpose other than for
back-up or as specifically authorized herein, violate
this Agreement. The User may not modify, reverse
engineer or decompile the Product (except as may be
allowed by law and only to the extent necessary to
achieve interoperability with other software on the
User's system and only if such information has not been
provided by NuSphere after written request).
6.0 Termination. NuSphere reserves the right to
terminate this Agreement, without notice, for the breach
of any term or condition by the User. Upon termination
of this Agreement, the User must remove each copy of the
Product from its computers and return or destroy all
copies in its possession.
7.0 Warranty. NuSphere warrants that for thirty (30)
days from the date of purchase, the medium on which
Product is provided shall be free from defects in
material or workmanship. If the media or accompanying
documentation is physically defective, User may return
it to NuSphere or the distributor from whom it was
purchased, and it will be replaced at no cost to the
User, or, at NuSphere's option, User will be given a
refund for the full purchase price. The new media and
documentation will be warranted for thirty (30) days.
NUSPHERE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OR ANY
WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR
8.0 LIMITATION OF LIABILITY. NUSPHERE OR ITS THIRD PARTY
CONTRIBUTORS, SHALL NOT BE LIABLE TO THE USER OR TO ANY
THIRD PART Y FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL
OR INDIRECT DAMAGES WITH RESPECT TO THIS AGREEMENT. IN
NO EVENT SHALL NUSPHERE'S CUMULATIVE LIABILITY UNDER OR
IN ANY WAY RELATED TO THIS AGREEMENT, RESULTING FROM ANY
CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, STRICT
LIABILITY OR BY ANY OTHER LEGAL THEORY, EXCEED THE TOTAL
AMOUNT OF PAYMENTS RECEIVED FROM THE USER.
THE USER AGREES THAT ITS SOLE REMEDY FOR ANY BREACH,
WHETHER IN LAW OR EQUITY, SHALL BE LIMITED TO
REPLACEMENT OF THE PRODUCT OR REFUND OF THE PURCHASE
9.0 Technical Support. User shall be entitled to thirty
(30) days of technical support, calculated from the date
the Product was licensed from NuSphere. NuSphere may, at
its option, provide User with upgrades of the Product or
may provide additional information that may enhance its
operation during this thirty (30) day period.
10.0 Fees for Technical Support and Upgrades. User may,
at its option and expense, contract with NuSphere for
technical support and services and for upgrades and
enhancements to the Product, in addition to those set
11.0 Miscellaneous Terms
11.1 Governing Law. This agreement is governed by the
laws of the Commonwealth of Massachusetts, excluding
those provisions governing choice of law. Exclusive
venue and jurisdiction for all matters relating to this
Agreement or the breach thereof shall be in the state or
federal courts of the Commonwealth of Massachusetts, and
the parties hereby consent to such exclusive
jurisdiction and venue. If a provision of this Agreement
is found by a court of competent jurisdiction to be
unenforceable, the remainder of the Agreement shall
continue in full force and effect.
11.2 Export Control Regulations. The Product and any
technology licensed under this Agreement are subject to
the United States Export Control laws and regulations.
User agrees not to export or re-export any Product
without first obtaining the necessary licenses and
approvals from the appropriate federal agency and shall
comply with all relevant regulations of the United
States Department of Commerce and with the United States
Export Administration Act to insure that the Product is
not exported or re-exported in violation of United
11.3 U.S. Government Restricted Rights. The Product and
its documentation are provided to the U.S. government
with Commercial Rights/Restricted Rights. This means
that if the User is a government agency, the use,
duplication, or closure by that government agency is
subject to various restrictions described in the Federal
Acquisition Regulations (FARs) at 48 CFR 52.227-14/13
(June 1987) and the Department of Defense FAR (DFARs)
52-227-7202-1 (a) and 227-7202-3(a) (1995), DFARs
252.227-7013(c)(1)(ii) (Oct 1988), FAR 52.227-7013/14,
FAR 12.212(a)(1995), FAR 52.227-19 (June1987) or FAR
52.227-14 (ALT III) (June 1987) as applicable. Use and
distribution of the Product are also subject to any
other restriction described elsewhere in this Agreement.
The Contractor or manufacturer is NuSphere Corporation,
6015 S. Virginia St., Ste E #154 Reno, Nevada, 89502 USA
(C)2001-2007. All rights reserved.
11.4 Complete Agreement. This Agreement represents the
complete understanding between the User and NuSphere and
supersedes any prior agreement, written or oral, with
regard to the Product.
11.5 Assignability. This Agreement shall not be assigned
by the User to a third party without the prior written
permission of NuSphere, except User may assign it rights
hereunder to any third party which acquires all or
substantially all of the User's assets.
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