WeldWorks Terms of Service & EULA

Overview

This End User License Agreement ("EULA") is a legal agreement between techMatrix LLC and the individual or entity downloading, installing, and/or using software product from techMatrix LLC. The copyrighted software (herein referred to as "Software" or "Product") includes in whole or in part all WeldWorks(TM) software modules, XML files, database schema and procedures, web services, libraries, printed or electronic media, and associated documentation. BY DOWNLOADING, LOGGING ON, COPYING AND/OR USING SOFTWARE FROM TECHMATRIX LLC, THE INDIVIDUAL OR ENTITY ("LICENSEE") IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS EULA. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS EULA, THE LICENSEE MUST NOT INSTALL OR USE ANY OF THE SOFTWARE DEVELOPED BY TECHMATRIX LLC AND ITS SUPPLIERS.

License Agreement

In this Agreement "Licensor" shall mean techMatrix LLC except under the following circumstances: (i) if Licensee acquired the Product as a bundled component of a third party product or service, then such third party shall be Licensor; and (ii) if any third party software is included as part of the default installation and no License is presented for acceptance the first time that third party software is invoked, then the use of that third party software shall be governed by this Agreement, but the term "Licensor," with respect to such third party software, shall mean the manufacturer of that software and not techMatrix LLC. With the exception of the situation described in (ii) above, the use of any included third party software product shall be governed by the third party's License agreement and not by this Agreement, whether that License agreement is presented for acceptance the first time that the third party software is invoked, is included in a file in electronic form, or is included in the package in printed form. If more than one License agreement was provided for the Product, and the terms vary, the order of precedence of those License agreements is as follows: a signed agreement, a License agreement available for review on the techMatrix LLC website, a printed or electronic agreement that states clearly that it supersedes other agreements, a printed agreement provided with the Product, an electronic agreement provided with the Product.

License Grant

Licensor grants Licensee a non-exclusive and non-transferable License to reproduce and use for personal or internal business purposes the compiled assembly version provided, any copy must contain all of the original proprietary notices. This License does not entitle Licensee to receive from techMatrix LLC hard-copy documentation, training, technical support, telephone assistance, or enhancements or updates to the Software unless a specific Product has been purchased by the Licensee that clearly states otherwise. Each separate physical network or office location requires its own set of separate Concurrent User Licenses for those wishing to use the Software in more than one location or on more than one network, all subject to the Permitted Number limitations and based on the number of users using or needing access to the Software. The Permitted Number of concurrent users shall be delineated at such time as licensee elects to purchase the Software.

Restrictions

Except as otherwise expressly permitted in this Agreement, or in another Licensor agreement to which Licensee is a party such as a distribution agreement, Licensee may not directly or indirectly: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, underlying user interface techniques, or underlying schema, architecture, and algorithms for the Software (except to the extent applicable laws specifically prohibit such restriction or source code is already available); (ii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; (iii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product; or (iv) publish any results of benchmark tests run on the Software to a third party without Licensor's prior written consent.

Key Codes, Concurrent User Limits, Upgrades and Updates. Licensee may not re-license, reproduce or distribute any key code or concurrent user limits except with the express written permission of techMatrix LLC. If the Software that licensee has licensed is an upgrade or an update, then the update or upgrade terminates the previously licensed copy of the Software to the extent it is being replaced. The update or upgrade and the associated license keys does not constitute the granting of a second license to the Product in that licensee may not use the upgrade or update copy in addition to the copy of the Software that it is replacing and whose license has terminated.

Termination

Without prejudice to any other rights, Licensor may terminate this Agreement if Licensee breaches any of its terms and conditions. Upon termination, Licensee shall destroy all copies of the Product.

Defensive Suspension. If licensee commences or participates in any legal proceeding against techMatrix LLC, then techMatrix may, in its sole discretion, suspend or terminate all license grants and any other rights provided under this LICENSE during the pendency of such legal proceedings.

Proprietary Rights

Title, ownership rights, and intellectual property rights in the Product shall remain with techMatrix LLC and its suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with techMatrix LLC and its supplier’s ownership of or rights with respect to the Product. The structure, organization and code of the Software are the valuable trade secrets and confidential information of techMatrix LLC and its suppliers. The Product is protected by United States copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Product is the property of the applicable content owner and is protected by applicable law. The License granted under this Agreement gives Licensee no rights to such content.

Disclaimer of Warranty

THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE BY LICENSEE. SHOULD THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT LICENSOR OR ITS SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED ONE HALF (50%) THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY) AND FEES FOR SUPPORT OF THE PRODUCT RECEIVED BY TECHMATRIX LLC AND ITS SUPPLIERS UNDER A SEPARATE SUPPORT AGREEMENT (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. TECHMATRIX LLC AND ITS SUPPLIERS ARE NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.

High Risk Activities

The Product is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Product could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Accordingly, Licensor and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities. Licensee agrees that Licensor and its suppliers will not be liable for any claims or damages arising from the use of the Product in such applications.

Miscellaneous

(a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. (b) This Agreement may be amended only by a writing signed by both parties. (f) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (g) The controlling language of this Agreement is English. If Licensee has received a translation into another language, it has been provided for Licensee's convenience only. (h) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (i) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination. (j) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of Licensee's assets to another entity. (k) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (l) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (m) The relationship between Licensor and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind Licensor in any way. (n) If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the techMatrix LLC WeldWorks EULA other party for any and all legal fees and costs associated therewith. (o) If any techMatrix LLC and its supplier’s professional services are being provided, then such professional services are provided pursuant to the terms of a separate Professional Services Agreement between techMatrix LLC and its suppliers and Licensee. The parties acknowledge that such services are acquired independently of the Product licensed hereunder, and that provision of such services is not essential to the functionality of such Product. (p) The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning. (q) Licensor may use Licensees name in any customer reference list or in any press release issued by Licensor regarding the licensing of the Product and/or provide Licensees name and the names of the Product licensed by Licensee to third parties.