Note: IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU (“USER”) AND ELECTRONIC THEATRE CONTROLS, INC. (“ETC”). PLEASE READ THE FOLLOWING CAREFULLY BEFORE OPERATING AND INSTALLING THE SOFTWARE (the “Software”). ETC PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS END USER LICENSE AGREEMENT (the “Agreement”) AND BY CLICKING THE “ACCEPT” BUTTON AND OPERATING AND INSTALLING THE SOFTWARE, YOU ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT, THEN ETC WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO YOU AND YOU MUST NOT INSTALL THE SOFTWARE OR OTHERWISE USE THE SOFTWARE.
THE SOFTWARE IS LICENSED AND COPYRIGHTED (NOT SOLD). Except for the limited license granted in this Agreement, ETC and its licensors retain all right, title and interest in the Software and all proprietary rights in the Software, including copyrights, patents, trademarks and trade secret rights, excluding any third party software contained therein.
THIS SOFTWARE IS PROVIDED TO USER IN CONNECTION WITH DEVICE(S) FROM ETC (“Device”). USER MAY USE THE SOFTWARE ONLY ON THE DEVICE AND ONLY SUBJECT TO THE TERMS AND CONDITIONS HEREIN. ETC will have no liability for errors, unreliable operation, or other issues resulting from use of the Software on or in connection with devices that are not in conformance with the manufacturer’s original specifications (collectively, “Modified Devices”). Use of the Software on Modified Devices will be at User’s sole and exclusive risk and liability.
Subject to User’s strict compliance with the following terms and conditions, ETC hereby grants to User, a worldwide, non-exclusive, limited license to use the Software on the Device during the Term.
The license granted to User in this Agreement is restricted as follows:
User is responsible and liable for all uses of the Software and documentation through access thereto provided by ETC, directly or indirectly. Specifically, and without limiting the generality of the foregoing, User is responsible and liable for all actions and failures to take required actions with respect to the Software and documentation by its authorized users or by any other person to whom User may provide access to or use of the Software, whether such access or use is permitted by or in violation of this Agreement.
The Software may include software, content, data or other materials, including related documentation, that are owned by third parties other than ETC and that are provided to ETC on license terms that are in addition to or different from those contained in this Agreement (“Third-Party Licenses”). A list of all materials, if any, included in the Software and provided under Third-Party Licenses is set forth on Schedule A to this Agreement, and the applicable Third-Party Licenses are accessible via links therefrom. User is bound by and shall comply with all Third-Party Licenses. Any breach by User or any of its authorized users of any Third-Party License is also a breach of this Agreement.
All questions and requests relating to Software Support must be directed to ETC. ETC may change or remove functionality and other features of the Software at any time, without notice. Support Services will include the provision of updates, bug fixes, patches and other error corrections (collectively, “Updates”) as ETC makes generally available free of charge to all licensees of the Software. ETC may develop and provide Updates in its sole discretion, and User agrees that ETC has no obligation to develop any Updates at all or for particular issues. User further agrees that all Updates will be deemed Software, and related documentation will be deemed documentation, all subject to all terms and conditions of this Agreement. User acknowledges that ETC may provide some or all Updates via download from a website designated by ETC and that User’s receipt thereof will require an internet connection, which connection is User’s sole responsibility. ETC has no obligation to provide Updates via any other media. Support Services do not include any new version or new release of the Software that ETC may issue as a separate or new product (“Upgrades”), and ETC may determine whether any issuance qualifies as an Upgrade or Update in its sole discretion. ETC has no obligation to provide Support Services, including Updates (i) for any but the most current version or release of the Software, or (ii) for any copy of Software for which all previously issued Updates have not been installed, or (iii) for any Software that has been modified other than by or with the authorization of ETC, or that is being used with any hardware, software, or configuration not specified in the documentation or expressly authorized by ETC in writing.
ETC intends to provide, but does not guarantee, Updates or Upgrades of the Software. If the Software is an Upgrade from a previous version of the Software, then it is provided to User on a license exchange basis. User agrees by installing and using the upgraded version of the Software to voluntarily terminate all use of the previous version of the Software. For each Upgrade, User will be prompted to accept a new terms and conditions relating to User’s use of the upgraded Software. User agrees any earlier agreement governing the use of the previous version of the Software is hereby void and replaced in its entirety by this Agreement.
User may provide suggestions, comments or other feedback (collectively, “Feedback”) regarding ETC’s products and services, including the Device and Software. Feedback is voluntary. ETC may use Feedback for any purpose without obligation of any kind. To the extent a license is required under User’s intellectual property rights to make use of the Feedback, User hereby grants to ETC an irrevocable, world-wide, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with ETC’s business, including the enhancement of the Software and the provision of products and services to its customers.
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ETC AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUITE ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. ETC AND ITS SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE SOFTWARE WILL MEET USER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. The entire risk as to the quality, operation, and performance of the Software is with User. Should any Software prove defective in any respect, User assumes the cost of any necessary servicing, repair or correction. This disclaimer of warranty constitutes an essential part of this license. ETC STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY LICENSES.
The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the User is the U.S. Government or any contractor therefor, User shall receive only those rights with respect to the Software and documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ETC OR ITS AFFILIATES, OR ANY OF ITS SUPPLIERS AND LICENSORS, BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE), WHICH INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOSS OF SERVICES, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE ENTIRE LIABILITY OF ETC AND ITS AFFILIATES, SUPPLIERS AND LICENSORS, UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) IS LIMITED TO THE AMOUNT PAID BY USER, IF ANY, FOR THE SOFTWARE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO USER.
The Software and documentation are subject to U.S. export control laws, including without limitation, the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. In connection with this Agreement, both ETC and User will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. User shall not, directly or indirectly, export, re-export or release the Software or documentation to, or make the Software or documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. User shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or documentation available outside the United States. User represents and warrants that it is not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.
User may terminate this Agreement by ceasing to use and destroying all copies of the Software and documentation. This license will automatically terminate in the event User breaches any of its terms. In the event of a claim of intellectual property infringement by any third party relating to the Software, ETC may immediately terminate this Agreement. In addition, ETC may choose to discontinue support of the Software at any time, without notice. In such case, the Software may cease to function and User’s data may become inaccessible. User is solely responsible for backing up any data stored in the Software.
Nothing in this Agreement shall limit User's right to sell the relevant Device together with the Software being on such Device if and to the extent the User purchased and further sells the relevant device within a country that transposed Directive 2009/24/EC into such country's applicable laws. It being clarified that this Agreement terminates and User has to destroy any back-up copy made of the Software as soon as User ceases to be the owner of the relevant Device.
User shall indemnify, defend and hold harmless ETC and its suppliers and licensors from and against any and all losses, damages, claims, liabilities, fines, costs and expenses (including reasonable attorney fees) arising out of User’s breach of this Agreement.
User acknowledges that ETC may, directly or indirectly through the services of third parties, collect and store information regarding use of the Software and use of the Device on which the Software is installed through the provision of Support Services. User agrees ETC may use such information for any purpose related to any use of the Software by User or on User’s equipment including but not limited to improving the performance of the Software, developing Updates, or providing products and services to its customers. ETC recognizes the importance of respecting User’s privacy. The Privacy Policy (linked below) provides a description of how ETC collects, uses, shares and protects personal information, as well as the choices and access rights User has in regards to such personal information. For more information on ETC’s privacy practices and to review ETC’s Privacy Policy please visit the following link: https://www.etcconnect.com/Privacy-Policy-and-terms-of-use.aspx.
Upon termination of this Agreement, the license granted hereunder shall terminate, and User shall cease using and destroy the Software, the related documents and any and all copies thereof and submit documents evidencing such destruction to ETC, if requested by ETC to do so.
This Agreement will be construed and interpreted exclusively according to the laws of the State of Wisconsin, United States of America, without giving effect to any principles of conflicts of law. Any action at law or in equity arising out of or directly or indirectly relating to this Agreement may be instituted only in the Federal or state courts located in Dane County, Wisconsin. ETC and User consent and submit to the personal jurisdiction of those courts for the purposes of any action related to this Agreement, and to extra-territorial service of process. This Agreement constitutes the entire understanding and agreement between ETC and User with respect to the transactions contemplated in this Agreement and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter of this Agreement, all of which are merged in this Agreement. This Agreement may not be modified, amended or in any way altered except by an instrument in writing signed by authorized representatives of both parties. In the event any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement will remain valid and enforceable according to its terms. Any failure by ETC to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision. The disclaimers and limitations of liability and User’s indemnity will survive any termination or expiration of this Agreement. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given on the date sent by e-mail or facsimile (with confirmation of transmission) or on the third day after the date mailed, by certified or registered mail, postage prepaid. This Agreement may be accepted in electronic form (e.g., by an electronic or other means of demonstrating assent) and User’s acceptance will be deemed binding between User and ETC. Neither ETC nor User will contest the validity or enforceability of this Agreement, including under any applicable statute of frauds, because it was accepted or signed in electronic form. Electronically maintained records when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES WILL REMAIN IN EFFECT.
For a complete list of all Third-Party Licenses that are fully incorporated herein to the extent required by each Third-Party License terms and conditions please visit www.etcconnect.com/licenses.