IMPORTANT: Read this before installing or using any copy of Lucid8® LLC DigiScope® Exchange server management software (the “SOFTWARE”), regardless of whether such SOFTWARE was distributed to you electronically and/or included on the CD or disk media provided to you with this License Agreement.
If you do not agree to the terms and conditions of the following License Agreement and you:
A. Purchased a license for the SOFTWARE in a package containing a CD-ROM or other disk media, return those items intact, together with the other components of the product, to the place of purchase for a refund of the purchase price.
B. Purchased a license for the SOFTWARE online, securely destroy all copies of the SOFTWARE and related documentation, terminate all use thereof and follow the directions posted online for obtaining a refund.
C. Obtained the SOFTWARE on a demo, trial or other no-charge basis, securely destroy all copies of the SOFTWARE and related documentation and terminate all use thereof.
REGARDLESS OF THE MEANS BY WHICH YOU ACQUIRED THE SOFTWARE, IF YOU DO NOT ACCEPT THE FOLLOWING TERMS AND CONDITIONS, YOU MUST DESTROY OR RETURN ALL COPIES OF THE SOFTWARE, AND NONE MAY BE RETAINED FOR USE, ARCHIVING OR ANY OTHER PURPOSE WHATSOEVER.
The following terms and conditions represent a binding legal License Agreement between you (the individual or business or other entity seeking rights to use the SOFTWARE) as licensee and Lucid8® LLC as licensor. INSTALLATION OR USE OF THE SOFTWARE CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.
1. “SOFTWARE” DEFINED. For purposes of this License Agreement, the term “SOFTWARE” includes all software furnished to you for use in connection with the DigiScope® application, including software owned by a party other than Lucid8® LLC or which is covered by a separate license offered or granted by a person other than Lucid8® LLC (“third party software”).
2. PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS. The SOFTWARE and any accompanying documentation are the proprietary products of Lucid8® LLC or its licensors and are protected under state, federal and foreign laws and international treaty provisions pertaining to copyrights, trademarks, service marks patents and/or other proprietary rights. Ownership of the SOFTWARE and all copies, modifications, translations, and merged portions thereof shall at all times remain with Lucid8® LLC or its licensors, and no rights are granted to you as licensee except as expressly set forth in this License Agreement.
3. GRANT OF LICENSE. The SOFTWARE and accompanying documentation are being licensed to you, which means you have the right to use the SOFTWARE only in accordance with this License Agreement. If you have misrepresented any of your identification information in the course of registration, download or license request, this license grant is void and you obtain no right to use the SOFTWARE or accompanying documentation for any purpose. The SOFTWARE is considered in use on a computer when it is loaded into temporary memory or installed into permanent memory. Lucid8® LLC is not obligated to provide, and you acquire no rights of any kind with respect to, source code for the SOFTWARE.
4. PERSONAL LICENSE - RESTRICTIONS ON TRANSFER - NONDISCLOSURE. This license is personal to you and may be used only by you, the licensee. Neither the SOFTWARE nor any accompanying documentation nor any rights granted by this License Agreement may be sublicensed, assigned, leased, loaned, sold, or otherwise transferred without the prior express written consent of Lucid8® LLC, which may be withheld in its discretion. Any purported transfer made without such consent shall be null and void. Notwithstanding the foregoing, however, in the event that the server computer on which the SOFTWARE has been installed is transferred to a business entity which owns or is owned by or under common control with you, your rights under this License Agreement may be assigned to such business entity with the server upon written notice to Lucid8® LLC. You shall observe complete confidentiality with respect to the SOFTWARE including all related pricing, functionality, performance, benchmarks, documentation and other information regarding the SOFTWARE which is not generally known to the public, and shall use your best efforts and take all reasonable steps to protect the SOFTWARE from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. You shall promptly notify Lucid8® LLC of any known unauthorized use or disclosure of the SOFTWARE and will cooperate with Lucid8® LLC in any litigation brought by Lucid8® LLC against third parties to protect its proprietary rights.
5. LICENSE LIMITATIONS. If you have obtained the SOFTWARE on a demo or trial basis, this License permits the SOFTWARE to be installed and used by you only for the purpose of determining whether to purchase a license to the SOFTWARE for your own use, and is subject to further time or other restrictions posted online as part of the SOFTWARE download process. If you have purchased a perpetual “Named Database” license, this License Agreement permits the SOFTWARE to be installed and used for an unlimited period of time on any computer which you own, lease or otherwise have a right to access, but only with respect to the Exchange database(s) designated at the time of SOFTWARE license generation. If you have purchased a project based “Named Database” license for a specific time period, this License Agreement permits the SOFTWARE to be installed and used during the designated time period on any computer which you own, lease or otherwise have a right to access, but only with respect to the Exchange database(s) designated at the time of SOFTWARE license generation. Once a “Named Database” license has been issued to you, that SOFTWARE license may not be used with respect to any other Exchange database(s). If you have purchased a “Universal” license, this License Agreement permits you to install the SOFTWARE on the computer(s) owned or leased by you as specified at the time of SOFTWARE license generation, for the purpose of accessing information on any Exchange Server(s), group(s) and database(s) for which you have the right to access, but only for the time period designated at the time the license is purchased. A “Universal” license on good standing may be revoked and then transferred to a computer other than the one upon which the SOFTWARE was originally installed and registered by following the process designated by Licensor at the time of the request. Any such transfer shall not extend the time period of the license.
6. USE BY SERVICE PROVIDERS. If you contract with a third party who performs software implementation, configuration, consulting or outsourcing services (“Service Provider”), the Service Provider may use the SOFTWARE and related documentation licensed by you hereunder solely for purposes of providing such services to you, provided that (i) you ensure that the Service Provider uses the SOFTWARE and related documentation in accordance with the terms of this License Agreement including but not limited to the export restrictions set forth herein; and (ii) neither you nor the Service Provider are Lucid8® LLC competitors or acting on behalf of a Lucid8® LLC competitor. You are jointly and severally liable to Lucid8 for the acts and omissions of your Service Providers in connection with their use of the SOFTWARE and related documentation. If you are a Service Provider, you may use the SOFTWARE in providing services to your customers, provide that (a) you use the SOFTWARE and related documentation in accordance with the terms of this License Agreement, including but not limited to the export restrictions set forth herein; and (b) you are not a Lucid8® LLC competitor or acting on behalf of a Lucid8® LLC competitor.
7. NON-PERMITTED USES. Without the express prior written permission of Lucid8® LLC, you may not (a) use, copy, modify, alter or transfer, electronically or otherwise, the SOFTWARE or documentation except as expressly permitted in this License Agreement, (b) translate, reverse program, disassemble, decompile, or otherwise reverse engineer the SOFTWARE; (c) create derivative works (as defined by U.S. copyright laws) incorporating or based upon the SOFTWARE or any portion thereof; or (d) test, benchmark or otherwise use the SOFTWARE for the purpose of creating, designing, modifying or evaluating software offered by you or third parties in competition with Lucid8® LLC.
8. MAINTENANCE AND SUPPORT. Lucid8® LLC may provide you with customer support and/or SOFTWARE upgrades, enhancements or modifications, for a separate charge and pursuant to the terms posted on the Lucid8® LLC website, as such terms may change from time to time. All upgrades, enhancements or modifications to the SOFTWARE, and all support information pertaining thereto, shall be deemed to be part of the SOFTWARE licensed by this agreement, and all rights of usage thereof shall terminate upon the termination of this license.
9. TERM. This license is effective from your date of purchase and shall remain in force until terminated or until the designated time period of the license expires, whichever is earlier. You may terminate the license and this License Agreement at any time by destroying the SOFTWARE and the accompanying documentation, together with all copies in any form. Lucid8® LLC may terminate your rights under this License Agreement for good cause, including the failure to make timely payment of any amounts due to Lucid8® LLC, and all such rights shall be deemed terminated in the event that you use or permit others to use the SOFTWARE in violation of the terms of this License Agreement.
10. CLIENT REFERENCE. Lucid8® LLC may include your entity’s name in listings of Lucid8 software licensees published on its website or in other promotional materials.
11. BACKUP COPY. You may create copies of the SOFTWARE for archival or backup purposes only.
12. EXPORT CONTROLS; U.S. GOVERNMENT RESTRICTED RIGHTS. You acknowledge that this product is of U.S. origin. Certain uses of the SOFTWARE by you may be subject to restrictions under U.S. regulations relating to exports and ultimate end users of computer software. You agree to fully comply with all applicable U.S. laws and regulations, including but not limited to the regulations of the U.S. Bureau of Industry and Security as amended from time to time. For additional information, see http://www.bis.doc.gov. If you purchased a license for the SOFTWARE for installation on a computer located outside the U.S., you agree not to re-export the SOFTWARE to any other country. If you are acquiring the SOFTWARE on behalf of any unit or agency of the United States Government, the following provision applies: It is acknowledged that the SOFTWARE and the documentation were developed at private expense and that no part is in the public domain and that the SOFTWARE and documentation are provided with RESTRICTED RIGHTS. Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted herein.
13. DISCLAIMER OF WARRANTY AS TO TRIAL SOFTWARE. LUCID8® LLC DISCLAIMS ANY WARRANTY WITH RESPECT TO SOFTWARE OBTAINED BY YOU ON A TRIAL OR OTHER NO-COST BASIS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
14. LIMITED WARRANTY AS TO PURCHASED SOFTWARE LICENSE. With respect to SOFTWARE licenses which you have purchased:
(a) Lucid8® LLC warrants to the original licensee end user (i) that the SOFTWARE, other than third-party software, will perform substantially in accordance with the accompanying documentation and (ii) that the SOFTWARE is properly recorded on the disk media. This Limited Warranty extends for ninety (90) days from the date of purchase. Lucid8® LLC does not warrant any third-party software that is provided with the SOFTWARE, but Lucid8® LLC agrees to pass on to you any warranties of the owner or licensor of such third party software to the extent permitted by the owner or licensor.
(b) This Limited Warranty does not apply to any SOFTWARE that has been altered, damaged, abused, misapplied, or used other than in accordance with this license and any instructions included on the SOFTWARE and the accompanying documentation.
(c) Lucid8® LLC’s entire liability and your exclusive remedy under this Limited Warranty shall be the repair or replacement of any SOFTWARE that fails to conform to this Limited Warranty or, at Lucid8® LLC option, a refund of the price paid for the SOFTWARE. Lucid8® LLC shall have no liability under this Limited Warranty unless the SOFTWARE is returned to Lucid8® LLC or its authorized representative, with a copy of your purchase receipt, within the warranty period. Any replacement SOFTWARE will be warranted for the remainder of the original warranty period or 30 days from the date it is delivered to you, whichever is longer.
(d) THIS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING.
(e) THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, YOU MAY HAVE OTHERS WHICH VARY FROM STATE TO STATE.
(f) Your failure to complete the electronic registration included with the SOFTWARE may result in Lucid8® LLC’s inability to provide you with updates to the SOFTWARE. LUCID8® LLC accepts no responsibility and you assume the entire risk of any errors or non-performance which could have been avoided if LUCID8® LLC had been able to provide you with such updates.
15. LIMITATION OF LIABILITY. EXCEPT AS PROVIDED BELOW RELATING TO INFRINGEMENT, LUCID8® LLC’S LIABILITY ARISING FROM OR RELATED TO ANY OF THE SOFTWARE SHALL IN NO EVENT EXCEED THE LICENSE FEES ACTUALLY PAID BY YOU FOR SUCH SOFTWARE. EXCEPT FOR A RETURN OF THE PURCHASE PRICE UNDER THE CIRCUMSTANCES PROVIDED UNDER THE LIMITED WARRANTY, NEITHER LUCID8® LLC NOR ITS LICENSORS OR DISTRIBUTORS SHALL IN ANY EVENT BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF LUCID8® LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, OR ANY OTHER LEGAL OR EQUITABLE GROUNDS. The foregoing provisions shall have the full effect permitted under applicable law. However, because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, some or all of the above limitation may not apply to you.
16. DATA DELETION AND PURGE FEATURE - LICENSEE ASSUMPTION OF RISK. The license for the SOFTWARE includes a license for its data deletion and purging features. Through its license and use of those features, Licensee acknowledges that it is acquiring the ability to selectively “delete” or “purge” email messages and other data from the Exchange Server database(s) with respect to which it has been licensed, and that such actions can be accomplished by any person to whom Licensee provides access to the DigiScope product. Licensee further acknowledges that once data is deleted, Lucid8 does not guaranty that Licensee will be able to utilize DigiScope or any other product to “undo” the deletion and restore the deleted data. Licensee further acknowledges that once data is purged, DigiScope cannot “undo” the purge and restore the purged data. LICENSEE HEREBY ACCEPTS AND ASSUMES FULL RISK AND RESPONSIBILITY FOR ALL USE OR MISUSE OF THE DATA DELETION AND PURGE FEATURES, INCLUDING ANY AND ALL LIABILITY, CLAIMS OR DAMAGES WHICH MAY ARISE FROM THE NEGLIGENT, RECKLESS OR INTENTIONAL DELETION OR PURGING OF DATA BY PERSONS WHOM LICENSEE AUTHORIZES OR ALLOWS TO USE THE DIGISCOPE PRODUCT
17. LICENSEE INDEMNIFICATION OF LUCID8 RE: USE OF DATA DELETION AND PURGE FEATURES. Licensee agrees to indemnify and hold Lucid8 LLC and its officers, employees, members and agents harmless from any and all claims, demands, liabilities, damages, costs and attorney’s fees arising or claimed to have arisen out of or in connection with use of the Data Deletion or Purge Feature for the SOFTWARE by Licensee or by any person to whom Licensee provides access to the DigiScope Product, including persons who gain access to the DigiScope Product by unauthorized or illegal means.
18. FEEDBACK. From time to time during your use of the SOFTWARE, you may provide suggestions, comments and feedback to Lucid8® LLC regarding the SOFTWARE, including but not limited to usability comments, bug reports and test results (collectively, “Feedback”). With respect to all such Feedback provided to Lucid8® LLC, you hereby grant Lucid8® LLC the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: (i) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any Lucid8® LLC product, technology, service, specification or other documentation (individually and collectively, “Lucid8® LLC Products”); (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Lucid8® LLC Product; (iii) to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties. Further, you warrant that your Feedback is not subject to any license or other agreement terms that would purport to require Lucid8® LLC to comply with any additional obligations with respect to any Lucid8® LLC Products that incorporate any Feedback, or which would restrict Lucid8® LLC’s right to use Feedback as it deems appropriate in its sole discretion.at its option, and without expense to you, will either (a) procure for you the right to continue using the SOFTWARE; (b) replace or modify the affected SOFTWARE with non-infringing software that is substantially equivalent in function to the affected SOFTWARE; or, if neither (a) nor (b) is commercially feasible, then (c) terminate this license and refund all license fees paid by you with respect to the SOFTWARE, conditioned upon your return of the SOFTWARE and/or your written certification that all copies of the SOFTWARE have been removed from your computer(s) and destroyed. Notwithstanding the foregoing, Lucid8® LLC shall have no liability for any third party claim of infringement based upon (i) SOFTWARE which has been altered by any person or entity other than Lucid8® LLC; (ii) SOFTWARE which has been used, operated or combined with non- Lucid8® LLC software, data or equipment and such infringement would have been avoided but for such use, operation or combination; or (iii) SOFTWARE which has been installed or used in a manner contrary to the instructions contained in documentation provided by Lucid8® LLC in connection with the SOFTWARE.
19. INFRINGEMENT. If a third party claims that the SOFTWARE infringes any U.S. or foreign patent, copyright, trademark, trade secret or other intellectual property right, you will promptly notify Lucid8® LLC in writing with respect to such claim. Lucid8® LLC shall defend, indemnify and hold you harmless from any such claim which interferes or threatens to materially interfere with your use of the SOFTWARE. Lucid8® LLC shall have the sole right to control the defense of any such claims and any settlement thereof, and you will provide reasonable cooperation and assistance in connection with such defense. At any point in the course of such defense, and whether or not a preliminary or permanent injunction is granted that would preclude your use of the SOFTWARE, Lucid8® LLC, at its option, and without expense to you, will either (a) procure for you the right to continue using the SOFTWARE; (b) replace or modify the affected SOFTWARE with non-infringing software that is substantially equivalent in function to the affected SOFTWARE; or, if neither (a) nor (b) is commercially feasible, then (c) terminate this license and refund all license fees paid by you with respect to the SOFTWARE, conditioned upon your return of the SOFTWARE and/or your written certification that all copies of the SOFTWARE have been removed from your computer(s) and destroyed. Notwithstanding the foregoing, Lucid8® LLC shall have no liability for any third party claim of infringement based upon (i) SOFTWARE which has been altered by any person or entity other than Lucid8® LLC; (ii) SOFTWARE which has been used, operated or combined with non- Lucid8® LLC software, data or equipment and such infringement would have been avoided but for such use, operation or combination; or (iii) SOFTWARE which has been installed or used in a manner contrary to the instructions contained in documentation provided by Lucid8® LLC in connection with the SOFTWARE.
20. OTHER PROVISIONS. This License Agreement constitutes the entire agreement between you and Lucid8® LLC pertaining to its subject matter. This License Agreement is governed by the laws of the State of Washington. Any litigation arising from this license may be pursued only in the state or federal courts located in the State of Washington, and the prevailing party in such litigation shall be entitled to recover its reasonable attorney's fees, expenses and costs from the non-prevailing party. Even if part of this agreement is held invalid, the rest of the agreement is still valid, binding and enforceable. The failure of either party to exercise a right does not waive future exercise of that right or other rights.
For further information: Should you have any questions concerning this Agreement, or if you desire to contact Lucid8® LLC for any reason, please write:
4304 East Mercer Way Mercer Island, WA 98040, U.S.A.
Copyright © 2005-2016, Lucid8® LLC. All rights reserved.