End User License Agreement
Legal notice: Jolly Software is not sold; rather, copies of Jolly Software are licensed all the way through the distribution channel to the end user. UNLESS YOU HAVE ANOTHER AGREEMENT DIRECTLY WITH JOLLY THAT CONTROLS AND ALTERS YOUR USE OR DISTRIBUTION OF THE JOLLY SOFTWARE, THE TERMS AND CONDITIONS OF THE JOLLY END USER LICENSE AGREEMENT LISTED BELOW APPLY TO YOU.
JOLLY END USER LICENSE AGREEMENT
JOLLY™ SOFTWARE END USER LICENSE AGREEMENT FOR DESKTOP USE ONLY
NOTICE TO JOLLY SOFTWARE USER: PLEASE READ THIS CONTRACT CAREFULLY. BY USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. DO NOT USE THE SOFTWARE IF YOU ARE UNWILLING OR UNABLE TO BE BOUND BY THIS AGREEMENT.
(a) "Jolly" means Jolly Technologies Inc. and its licensors, if any.
(b) "Software" means all of the contents of the file(s), disk(s), CD-ROM(s) or other media with which this Agreement is provided and any copies made therefrom.
(c) "Use", "Using" or "Uses" means to access, install, copy, or otherwise benefit from using the functionality of the Software.
(d) "Mandatory Product Activation" refers to the process of installing and activating the Software on a computer.
(e) "End User" means the person who uses the Software after it has been installed.
(f) "License" means permission from Jolly, provided either directly or through an Approved Source, to use Software on a non-exclusive basis which is subject to all listed terms and conditions within this Agreement.
(g) "Agreement" means all terms, provisions, and conditions of this End User License Agreement.
2. License Grants
(a) For each License granted by Jolly, you may install, activate and use a copy of the Software on one (1) compatible computer. A license for the Software may not be shared, installed or used concurrently on different computers.
(b) You are granted one (1) Mandatory Product Activation per License of the Software. If you would like to activate the Software more than once, prior express written permission must be obtained from Jolly. Jolly may grant or deny your request at Jolly's discretion.
(c) You may make one copy of the Software in machine-readable form solely for backup purposes, provided your backup copy is not installed or used on any other computer. You must reproduce on any such copy all copyright and intellectual property notices and any other proprietary legends which exist on the original licensed copy of the Software.
(d) You agree that Jolly may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse Jolly for all reasonable expenses related to such audit in addition to further licensing fees and any other liabilities you may incur, including but not limited to all attorney fees, as a result of such non-compliance.
(e) Your license rights under this EULA are non-exclusive.
(f) Mandatory Product Activation. The license rights granted under this Agreement may be limited or revoked unless you supply accurate information required to activate your licensed copy in the manner described during the setup sequence of the Software. You may need to activate the Software through the use of the Internet or telephone; and toll charges may apply. There are technological measures in this Software that are designed to prevent unlicensed or illegal use of the Software. You agree that Jolly may use those measures and you agree to follow any requirements regarding such technological measures. You may also need to reactivate the Software if you modify your computer hardware or alter the operating system. Product activation is based on the required exchange of information between your computer and Jolly.
3. License Restrictions
(a) You may not sell, rent, lease, or sublicense all or any portion of the Software.
(b) You may, however, transfer all your rights to Use the Software to another person or legal entity provided that (i) you retain no copies, (ii) you deactivate the software using the Jolly's Software Activation Wizard, (iii) you also transfer this Agreement, (iv) by using all or any portion of the Software the receiving party accepts all terms and conditions of this Agreement, and (v) you notify Jolly in writing within one (1) business day of such transfer of your rights to Use the Software.
(c) Other than as set forth in Section 2, you may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network.
(d) You may use the Not for Resale Version of the Software only to review and evaluate the Software prior to making a licensing purchase decision.
(e) You shall not use the Software to develop any application having the same primary function as the Software.
(f) Jolly may, following 5 days written prior notice (by email) suspend and disable your Use of the Software if you:
(i) fail to make any payment of fees when due, including any non-payment to the authorized reseller that you purchased the License from (the "Reseller");
(ii) breach any provision of this Agreement; or
(iii) if you purchased the License from a Reseller, and Jolly determines (in its sole discretion) that the Reseller has failed to remit payment to Jolly for your License.
If your Use was suspended pursuant to subsection (iii) above, your sole recourse will be against the Reseller (and not Jolly), and Jolly will not be obligated (nor liable) to provide you with a License if the Reseller fails to remit payment to Jolly for the License fees.
During such suspension, your Use of the Software will be unavailable, and you may not have access to your data. Jolly will re-activate your Use of the Software from suspension after you cure your non-compliance or non-performance that resulted in the suspension of your account.
(g) In addition to the suspension rights in subsection (f) above, Jolly may terminate the license without further notice in the event that you fail to comply with this Agreement or cure any breach or non-performance that resulted in the suspension of your account pursuant to section (f) above. Upon termination, you must immediately destroy all copies of the Software, and cease all Use of the Software.
4. Intellectual Property Rights
The Software and any copies of the Software are and remain the intellectual property of Jolly, and nothing herein shall be interpreted to transfer any ownership rights to you. You may not alter, merge, modify, decompile, reverse engineer, or disassemble the Software. You may not modify the Software or create derivative works based upon the Software. The software is protected by all US and international copyright laws, and Jolly, solely and explicitly, retains and reserves all copyright and intellectual property rights.
Acceptance of this Agreement grants you limited license to use the Software. Jolly and its authorized suppliers and Approved Source retain all right, title and interest in and to the Software and all copies thereof. All rights not otherwise specifically granted in this Agreement are
reserved by Jolly, its supplier and Approved Source.
6. Limited Warranty
Subject to the limitations and conditions set forth herein, Jolly warrants that commencing from the date of shipment to You, and continuing for a period of the longer of (a) thirty (30) days or (b) the warranty period (if any) expressly set forth as applicable specifically to software in the warranty card (if any) accompanying the Software: (a) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (b) the Software substantially conforms to the Documentation. "Documentation" means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) pertaining to the Software and made available by Jolly with the Software in any manner (including on CD-ROM, or on-line). The date of shipment of a product by Jolly is set forth on the packaging material in which the product is shipped. Except for the foregoing, the Software is provided "AS IS". This limited warranty extends only to the Software purchased from an Approved Source by You who is the first registered end user. Your sole and exclusive remedy and the entire liability of Jolly and its suppliers under this limited warranty will be (i) replacement of defective media and/or (ii) at Jolly's option, repair, replacement, or refund of the purchase price of the Software, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to the Approved Source supplying the Software to You, within the warranty period. Jolly or the Approved Source supplying the Software to You may, at its option, require return of the Software and/or Documentation as a condition to the remedy. In no event does Jolly warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions. In addition, due to the continual development of new techniques for intruding upon and attacking networks, Jolly does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.
Restrictions. This warranty does not apply if the Software, Product or any other equipment upon which the Software is authorized to be used (a) has been altered, except by Jolly or its authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Jolly, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; or (d) is licensed for beta, evaluation, testing or demonstration purposes. The Software warranty also does not apply to (e) any temporary Software modules; (f) any Software that Jolly expressly provides on an "AS IS" basis; (g) any Software for which an Approved Source does not receive a license fee; and (h) Software supplied by any third party which is not an Approved Source.
DISCLAIMER OF WARRANTY
EXCEPT AS SPECIFIED IN THIS WARRANTY SECTION, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY JOLLY, ITS SUPPLIERS, AND LICENSORS. TO THE EXTENT THAT ANY OF THE SAME CANNOT BE EXCLUDED, SUCH IMPLIED CONDITION, REPRESENTATION AND/OR WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD REFERRED TO IN THE "LIMITED WARRANTY" SECTION ABOVE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY IN SUCH STATES. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITIES AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
7. Exclusion of All Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL JOLLY OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY INJURY TO PERSON OR PROPERTY,
DAMAGES FOR LOSS OF BUSINESS INTERRUPTION, PROFITS, LOSS OF BUSINESS DATA OR PROPERTY, FOR GROSS NEGLIGENCE, AND FOR ANY OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT
LIABILITY OR OTHERWISE, EVEN IF JOLLY OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF DAMAGES SHALL BE EFFECTIVE EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8. Limitation and Release of Liability
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, ALL LIABILITY OF JOLLY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS COLLECTIVELY, TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, SHALL
NOT EXCEED THE PRICE PAID BY CUSTOMER TO JOLLY OR ANY OTHER APPROVED SOURCE FOR THE SOFTWARE THAT GAVE RISE TO THE CLAIM OR, IF THE SOFTWARE IS PART OF ANOTHER PRODUCT, THE PRICE PAID FOR SUCH OTHER PRODUCT. THIS LIMITATION OF LIABILITY FOR SOFTWARE IS CUMULATIVE
AND NOT PER INCIDENT (I.E. THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT).
9. Restricted Rights
This Software is provided with "RESTRICTED RIGHTS". The Use and duplication of the Software is subject to the restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable. Manufacturer: Jolly Technologies Inc., 951 Mariners Island Blvd. Ste 300, San Mateo, CA 94404, USA.
This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. The construction and performance of this Agreement shall be governed by the laws of the State of California, USA, excluding its conflicts and choice of law provisions. The parties agree that any dispute between them arising out of or relating to this Agreement shall be commenced in San Mateo County. The failure of either party to enforce at any time or for any period of time the provisions herein shall not be construed to be a waiver of such provisions or of the right to enforce each and every such provision. In the event any provision of this Agreement or the application of any such provision to either you or Jolly is unenforceable or invalid under any applicable law or is so held by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect. In such event, such provision will be changed and interpreted so as to best accomplish the commercial objectives of such provision within the limits of applicable law or court decision.
All questions concerning this Agreement shall be directed to:
Jolly Technologies Inc.
951 Mariners Island Blvd. Ste 300
San Mateo, CA 94404