Last updated September 29, 2020
Copyright © 2010-2020 Ubilogix International, Inc. All rights reserved.
IMPORTANT: PLEASE READ THIS DOCUMENT CAREFULLY AND IN ITS ENTIRETY BEFORE DOWNLOADING, INSTALLING OR OTHERWISE USING THE UBIQUA SOFTWARE SUITE AND ANY UPDATES AND/OR ADDED FUNCTIONALITY THERETO (COLLECTIVELY, THE “SOFTWARE”) MADE AVAILABLE TO YOU BY OR ON BEHALF OF UBILOGIX INTERNATIONAL, INC. (“UBILOGIX”). BY DOWNLOADING, INSTALLING OR OTHERWISE USING THIS SOFTWARE, YOU (“END USER”) ARE AGREEING TO AND ARE BOUND TO THE TERMS AND CONDITIONS OF USE SET FORTH IN THIS EULA. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL OR USE THE SOFTWARE, AND PROMPTLY RETURN THE SOFTWARE TO THE SOURCE FROM WHICH YOU OBTAINED IT; IF THE SOFTWARE WAS DOWNLOADED FROM THE INTERNET, PROMPTLY ERASE THE INSTALLATION PACKAGE FOR THE SOFTWARE.
This EULA governs use of the Software, regardless of how it was obtained by the End User.
1. Software License. The Software is a collection of various software components and documents, some of which are owned by Ubilogix and referred to as the “Ubiqua Software” and other components, which are owned by other entities and subject to their individual license agreements. The End User is granted a non-exclusive, non-sub-licensable, and non-transferable license to install and use the Software, in executable form only, for End User’s internal purposes and only in accordance with the license type, license term, for the number of instance licenses for which the End User has purchased or is otherwise entitled to activate under the evaluation license terms described in Section 2 of this EULA.
a) Ubiqua Software cannot be distributed without the express, prior written consent of Ubilogix and may not be copied, except as permitted by the law for backup purposes. End User may not (and may not knowingly allow any third party to) remove, alter, or obscure any proprietary notices contained on or within the Ubiqua Software and shall reproduce such notices on any permitted copies of Ubiqua Software without alteration. End User acknowledges that the scope of the license granted hereunder does not permit End User, or any related third party to: (i) create derivative works of, copy, alter or in any way modify the Ubiqua Software (except to the extent that such restrictions are not permitted under applicable law); (ii) translate, decompile, disassemble, reverse compile, reverse engineer, interrogate, or decode the Ubiqua Software or in any other manner reduce the Ubiqua Software to human perceivable form (except to the extent that such restrictions are not permitted under applicable law); (iii) bypass or delete any copy protection methods implemented for the prevention of unauthorized copying or use of the Ubiqua Software; or (iv) electronically distribute, timeshare, provide as a commercially hosted service or service bureau, market by interactive cable or remote processing services the Ubiqua Software; and (v) use the Ubiqua Software except as set forth in this EULA. Ubilogix reserves and maintains all rights to the Ubiqua Software not expressly granted herein.
b) Components of the Ubiqua Software, which are not property of Ubilogix, are licensed under various other individual licenses, including but not limited to the Open Source MIT License. Online links to the License agreements for such components are stated below and all are incorporated in this EULA as if fully set forth:
If End User does not agree to abide by all the applicable license terms for any such programs, then End User is not permitted to install or use the software.
2. Evaluation Licenses. Any software (whether a full or partial collection of the Ubiqua Software) provided to the End User under a limited-term evaluation license (“Evaluation Product”) will be subject to the terms of this Section 2 in addition to all other terms of this EULA. Evaluation Products are activated with a software license key and have an expiration date (“Expiration Date”) and are limited to one per End User. End User may use the Evaluation Product solely for the purpose of evaluating the suitability of the Evaluation Product for licensing on a for-fee basis and only until the Expiration Date has been reached. The Evaluation Product is provided “as is” without indemnification, warranty of any kind, whether express, implied, statutory, or otherwise. Notwithstanding anything to the contrary herein, Ubilogix has no duty to provide support for the Evaluation Product. UBILOGIX BEARS NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE OF THE EVALUATION PRODUCT.
3. Ownership. The Ubiqua Software and each of its components, including the source code, documentation, appearance, structure, and organization are owned by Ubilogix and other entities and are protected under copyright and other intellectual property laws. Title to the Ubiqua Software, including any customer-funded development thereof, shall remain with the aforementioned, subject to the licenses described above.
4. Trademarks. The "Ubilogix” "Ubiqua," “Ubiqua Toolbox,” and associated logos are the trademarks or registered trademarks of Ubilogix and its affiliates. This EULA does not permit the End User to use the Ubilogix trademarks or registered trademarks.
5. Software Updates and Support.
a) If this EULA accompanies a copy of the Ubiqua Software which is an upgrade from an earlier version, End User may only use the Ubiqua Software if he/she has (at the time the Upgrade was received) a valid license to use the pre-existing version of the Ubiqua Software. The upgrade is provided to the End User on a license exchange basis. End User agrees, by installation and use of such copy of the Ubiqua Software, to voluntarily terminate the earlier EULA and to discontinue use of the earlier version of the Ubiqua Software. End User may not transfer the pre-existing version of the Ubiqua Software to another person or entity.
b) Each license to use the Ubiqua Software, except for an Evaluation License, shall receive support as designated by the license terms. Support includes telephone support, new software revisions, fixes, and enhancements released during the support period.
c) END USER UNDERSTANDS THAT THE UBIQUA SOFTWARE MAY EMBODY MECHANISMS TO PREVENT THE INSTALLATION OF A SOFTWARE UPGRADE IF THE INSTALLED SOFTWARE IS NOT SUBJECT TO A VALID LICENSE. FURTHERMORE, END USER IS PROHIBITED FROM ALTERING, ATTEMPTING TO ALTER OR IN ANYWAY TAMPERING WITH THESE MECHANISMS.
6. Limited Warranty. EXCEPT AS SPECIFICALLY STATED IN THIS EULA OR IN A LICENSE FOR A PARTICULAR COMPONENT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE UBIQUA SOFTWARE AND ITS COMPONENTS ARE PROVIDED AND LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE REGARDING OR RELATING TO THE SOFTWARE, THE DOCUMENTATION, OR ANY MATERIALS FURNISHED OR PROVIDED TO YOU UNDER THIS EULA. UBILOGIX DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET THE END USER’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE OR APPEAR PRECISELY AS DESCRIBED IN THE ACCOMPANYING DOCUMENTATION.
7. Limitation of Remedies and Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, END USER ACCEPTS THE REMEDIES DESCRIBED HEREIN AS ITS ONLY REMEDIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UBILOGIX WILL NOT BE LIABLE TO END USER OR ANY OTHER RELATED ENTITY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST OPPORTUNITIES, LOST SAVINGS, OR LOST DATA OR COST OF COVER ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF END USER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL UBILOGIX’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF U.S. $100 UNDER THIS EULA. END USER ACKNOWLEDGES THAT THE EULA REFLECTS AN ADEQUATE AND ACCEPTABLE ALLOCATION OF RISK.
8. Export Control. As required by U.S. law, End User represents and warrants that it: (a) understands that the Ubiqua Software is subject to export controls under the U.S. Commerce Department's Export Administration Regulations ("EAR"); (b) is not located in a prohibited destination country under the EAR or U.S. sanctions regulations; (c) will not export, re-export, or transfer the Ubiqua Software to any prohibited destination, entity, or individual without the necessary export license(s) or authorizations(s) from the U.S. Government; (d) will not use or transfer the Ubiqua Software for use in any sensitive nuclear, chemical or biological weapons, or missile technology end-uses unless authorized by the U.S. Government by regulation or specific license; (e) understands and agrees that if it operates in the United States and exports or transfers the Ubiqua Software to eligible end users, it will, as required by EAR Section 740.17, (f) submit semi-annual reports to the Commerce Department's Bureau of Industry & Security (BIS), which include the name and address (including country) of each transferee; and (g) understands that countries other than the United States may restrict the import, use, or export of encryption-enabled products and that it shall be solely responsible for compliance with any such import, use, or export restrictions.
9. Government Users. The Ubiqua Software is a “commercial item” as that term is defined in 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and is provided to the U.S. Government End Users only as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F. R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government End Users acquire the Ubiqua Software with only those rights set forth herein.
10. High Risk Activities Warning. UBILOGIX PRODUCTS, INCLUDING THE UBIQUA SOFTWARE, ARE NOT DESIGNED WITH COMPONENTS AND TESTED FOR A LEVEL OF RELIABILITY SUITABLE FOR USE IN OR IN CONNECTION WITH SURGICAL IMPLANTS OR AS CRITICAL COMPONENTS IN ANY LIFE SUPPORT SYSTEMS WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE SIGNIFICANT INJURY TO A HUMAN OR FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAILSAFE CONTROLS, INCLUDING WITHOUT LIMITATION, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, OR WEAPONS SYSTEMS (COLLECTIVELY “HIGH RISK ACTIVITIES”). UBILOGIX SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH HIGH RISK ACTIVITIES. BECAUSE EACH END-USER SYSTEM IS CUSTOMIZED AND DIFFERS FROM UBILOGIX’S TESTING PLATFORMS AND BECAUSE AN END USER OR APPLICATION DESIGNER MAY USE UBILOGIX PRODUCTS IN COMBINATION WITH OTHER PRODUCTS IN A MANNER NOT EVALUATED OR CONTEMPLATED BY UBILOGIX, THE END USER OR APPLICATION DESIGNER IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY OF UBILOGIX PRODUCTS WHENEVER UBILOGIX PRODUCTS ARE INCORPORATED IN A SYSTEM OR APPLICATION, INCLUDING, WITHOUT LIMITATION, THE APPROPRIATE DESIGN, PROCESS, AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION.
11. Terms and Termination. The license term shall be the duration of the license(s) granted hereunder. This EULA shall remain effective until the end of the license term, unless terminated earlier. The End User may terminate this EULA by removing the Ubiqua Software from End User’s computers, ceasing all use of, and destroying all copies of the Ubiqua Software. Any breach of this EULA by End User will result in the immediate and automatic termination of this EULA and all licenses granted by Ubilogix herein. Upon such termination, the End User shall cease all use of and destroy all copies of the Ubiqua Software and notify Ubilogix at the address furnished below. In addition to termination, Ubilogix has the right to pursue any other remedies available to it under law after a breach of this EULA by the End User.
12. General. If any provision of this EULA is held to be unenforceable by a court of law, such proclamation shall not affect the enforceability of the remaining provisions. This EULA shall be governed by the laws of the State of California and of the United States, without regard to any conflict of laws provisions, except that the UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY. End User and Ubilogix agree to bring any claims arising out of, or related to this EULA in the state or federal courts having jurisdiction in San Diego, California, and that End User and Ubilogix agree and submit to the personal and exclusive jurisdiction and venue of these courts.
13. Internal Components General. If any provision of this EULA is held to be unenforceable by a court of law, such proclamation shall not affect the enforceability of the remaining.
If the End User has any questions about this EULA or desires to contact Ubilogix, it shall send inquiries to Ubilogix, International, Inc., 3111 Camino del Rio N, Ste. 400, San Diego, CA 92108.