END USER LICENSE AGREEMENT
Please review this end user license agreement (this “Agreement”) carefully. This Agreement constitutes a legal agreement between You (either an individual or single entity, such as a company) (“You”) and Perle Systems Limited (“Perle”). By clicking on the applicable “I agree” button, downloading, copying, installing, activating or otherwise using the software Perle makes available on Perle’s website or any of Perle’s software loaded or pre-installed in devices, equipment, or products sold or offered for sale by Perle (the “Perle Software”), You do so with the intent to electronically “execute” and agree to be bound by this Agreement. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, You have no right to use the Perle Software and You should (a) return, delete, or disable the Perle Software or (b) if You purchased a product from Perle or its reseller or distributor on which the Perle Software is pre-installed by Perle, return the purchased product to Perle or the applicable reseller or distributor from whom You obtained the product.
- License Uses and Restrictions. Subject to the terms and conditions of this Agreement, Perle grants to You a personal, revocable, limited, non-exclusive, non-transferable (except as otherwise permitted) license to download, install, and use the Perle Software in object code format in association with Perle’s products. With respect to any Perle Software available for download by You from Perle’s website, You may make one copy of the Perle Software on Your computer in machine-readable form for backup purposes only, provided that the backup copy must include all copyright or other proprietary notices contained on the original. Such copy will be the sole and exclusive property of Perle. No right to copy any Perle Software is otherwise granted under this Agreement. This Agreement does not grant You any other rights, and You have no rights to use any aspect of Perle Software. You may not distribute or make the Perle Software available over a network where it could be accessed, downloaded, or used by others. You will not modify, rent, lease, loan, sell, make available, re-sell, offer for re-sale, distribute, sublicense, or create derivative works based on, the Perle Software, in any manner, and You will not exploit the Perle Software in any unauthorized manner whatsoever. You will only use the Perle Software and any portions thereof in accordance with this Agreement and all applicable laws and regulation. Perle may make available updates and upgrades to the Perle Software on its website (the “Software Updates”). The Software Updates is made available from time to time solely at Perle’s option. The Software Updates may come with its own terms and conditions, provided however that if it does not, You may only use and install such Software Updates under the terms and conditions of this Agreement. For Perle Software for which you pay license fees (the “Paid Software”), the Paid Software may only be installed on one single user computer or on one single server. If you wish to reinstall the Paid Software on another computer or server or to transfer the license for the Paid Software installed on one computer or server to another computer or server, you will notify Perle and additional fees may apply to you.
- Confidentiality. You acknowledge and agree that the Perle Software constitute confidential information and trade secrets of Perle or its licensors. This Agreement gives You no right to any source code form of the Perle Software, and You will not, directly or indirectly, copy (except as expressly permitted by this Agreement), reverse-compile or decompile, analyze, reverse-engineer, reverse-assemble or disassemble, unlock or otherwise attempt to discover the source code or underlying algorithms, or decrypt, any of the Perle Software or attempt to do any of the foregoing in relation to the Perle Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of open-sourced components included with the Perle Software).
- Intellectual Property Ownership. Perle’s name, trade-marks, logos, and graphics used in connection with the Perle Software are trade-marks, whether registered or unregistered, of Perle or its licensors. Other trade-marks, graphics, and logos used in connection with the Perle Software may be the trade-marks of their respective owners. Perle grants You no rights or license with respect to any of its trade-marks and any use of such trade-marks. The Perle Software contains copyright protected materials, trade-secrets, and other proprietary materials. You will not, and will not attempt to, at any time, before or after termination of this Agreement, remove any proprietary rights or copyright notices or identification which indicates ownership of the Perle Software by Perle and its licensors. Perle and its licensors retain exclusive ownership in all right, title, and interest, including, without limitation, all intellectual property rights, in and to the Perle Software, and Perle reserve all rights not expressly granted to You under this Agreement. You agree that nothing in this Agreement will adversely affect any rights and recourse to any remedies, including, without limitation, to injunctive relief, that Perle may have under any applicable laws relating to the protection of Perle's intellectual property or other proprietary rights.
- Term. This Agreement will be effective upon Your agreement to be bound by the terms and conditions of this Agreement and will continue in effect unless otherwise terminated in accordance with the terms of this Agreement.
- Termination. If You breach this Agreement, Perle may terminate this Agreement with respect to the Perle Software that You have licensed pursuant to the terms and conditions of this Agreement upon notice. Perle may also terminate this Agreement, without any liability to You, if any law, regulations, orders, or legal requirements prohibits Perle’s provision or licensing of the Perle Software to You. You will remove, destroy, and return to Perle all copies of the Perle Software. Provisions in this Agreement, which by their nature extend beyond termination of this Agreement, will remain in effect until fulfilled. If You breach, misappropriate or otherwise infringe Perle’s confidential information, intellectual property or other proprietary rights (collectively, “IP Breach”) and a court in Your country is unable or unwilling to grant an injunctive order to stop such IP Breach, You acknowledge that Perle will have the right to receive liquidated damages from You in the amount of US $5,000 per day during the period of such IP Breach.
- Indemnification. You will indemnify, hold harmless, and defend Perle, its licensors, and their respective employees, agents, and distributors against any and all claims, proceedings, demands and costs resulting from or in any way connected with Your use of the Perle Software and/or the and arising of Your breach of this Agreement.
Disclaimer of Warranties.
- SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR DISCLAIMER OF WARRANTIES, CONDITIONS, ENDORSEMENTS, GUARANTEES, OR REPRESENTATIONS OR THE LIMITATION OF REMEDIES IN CONTRACTS WITH CONSUMERS AND TO THE EXTENT YOU ARE A CONSUMER THESE EXCLUSIONS MAY NOT APPLY TO YOU.
- TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PERLE AND ITS LICENSORS HEREBY DISCLAIMS AND EXCLUDES ALL WARRANTIES, CONDITIONS, ENDORSEMENTS, GUARANTEES, OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES, CONDITIONS, ENDORSEMENTS, GUARANTEES, OR REPRESENTATIONS OF DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR TITLE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE, AND ALL OTHER WARRANTIES, CONDITIONS, ENDORSEMENTS, GUARANTEES, OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED.
- To the extent any implied warranties, conditions, endorsements, guarantees, or representations relating to the Perle Software cannot be excluded but can be limited under applicable laws, Perle hereby limits such implied warranties, conditions, endorsements, guarantees, or representations to ninety (90) days from the date You first installed the Perle Software or the date You purchased Perle’s products if the Perle Software is pre-installed on such products.
Limitation of Liability.
- SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CONSEQUENTIAL, INDIRECT OR OTHER DAMAGES IN CONTRACTS WITH CONSUMERS AND TO THE EXTENT YOU ARE A CONSUMER THE LIMITATIONS OR EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU.
- TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL PERLE, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, PRINCIPALS, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING FROM YOUR USE OF ANY OF THE PERLE SOFTWARE, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE PERLE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, OR CONFIDENTIAL OR OTHER INFORMATION, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR FOR LOSS OF PRIVACY ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE PERLE SOFTWARE OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE PERLE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) AND EVEN IF PERLE OR ITS LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN NO EVENT WILL PERLE'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS (USD $100).
- THE FOREGOING LIMITATIONS IN SECTION 8(B) TO 8(C) WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Nothing in this Section 8 limits Perle’s liability to You in the event of: (i) death or personal injury to You; or (ii) any intentional fraudulent act, intentional fraudulent omission, or gross negligence of Perle.
- Export Control. You may not use or otherwise export or re-export the Perle Software except as authorized by the laws of Canada and the United States, and the laws of the jurisdiction(s) in which You are ordinarily resident. The license granted to You under this Agreement is on the condition that You comply with applicable export control legislation and You acknowledge that this Agreement will be terminated if You do not comply with this Section. You represent and warrant that You are not located in any Canadian or U.S. government embargoed, restricted, or prohibited countries or in any country on Canada’s Area Control List.
- Entire Agreement " English Language. This Agreement constitutes the entire agreement between You and Perle relating to the Perle Software and supersedes all prior or contemporaneous understandings regarding such subject matter. If and to the extent there is any linguistic translation of this Agreement done for local requirements, in the event of a dispute between the English and any non-English versions, the English version of this Agreement will govern, to the maximum extent permitted under applicable law in Your jurisdiction. You may also be subject to additional terms and conditions that may apply when You use affiliated services, third-party content, or third-party software relating to or connected with the Perle Software.
- Amendment. This Agreement may be amended at any time upon mutual agreement by the parties. To the maximum extent permitted under applicable law, Perle further reserves the right to make changes to this Agreement on a prospective basis, either to reflect changes in or required by law (including, without limitation, changes to ensure the enforceability of this Agreement) or changes in business practices, by providing You with reasonable notice of the change either electronically or by posting notice of the change at Perle’s website and You should regularly review that website for changes. If You continue to use the Perle Software more than sixty (60) days after notice of the change has been given, then You will be deemed to have accepted this change.
- Severability. To the extent any section, clause, provision or sentence or part thereof ("Part") of this Agreement is determined to be illegal, invalid or unenforceable by a competent authority in any jurisdiction, then such determination of that Part will not affect: (i) the legality, validity or enforceability of the remaining Parts of this Agreement; or (ii) the legality, validity or enforceability of that Part in any other jurisdiction, and that Part will be limited if possible and only thereafter severed, if necessary, to the extent required to render the Agreement valid and enforceable.
- Waiver. The failure by Perle to insist on strict compliance with any provision of this Agreement will not be deemed to be a waiver of such provision, and a waiver of any provision of this Agreement at any one time or times will not be deemed to be a waiver for any other time. The failure of Perle to assert its rights in a timely fashion for any of its rights or remedies under the provisions of this Agreement will not be interpreted as a novation or a waiver of any subsequent or continuing breach and will not serve to modify, alter or restrict the right of Perle to assert any rights at any time thereafter.
- Enurement. These terms and conditions and the rights and obligations set forth in this Agreement will be binding upon You and enure to the benefit of Perle and its successors and assigns.
- Governing Law. This Agreement will be governed by and interpreted in accordance with the laws (procedural and substantive) applicable in the province of Ontario, Canada without regard to the conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to this Agreement or to the transactions contemplated by this Agreement. Your use of the Perle Software may also be subject to other local, state, national or international laws. If You live in a jurisdiction that does not have copyright legislation in force, or You live in a jurisdiction for which copyright legislation in force does not protect the software licensed under this Agreement, then, in addition to any other obligations You may have under the applicable law in Your jurisdiction, You expressly agree that the Copyright Act of Canada will be deemed to apply to You and Your use of Perle Software.
- Dispute Resolution. Any controversy, question, claim or other dispute arising out of or relating to this Agreement must be conclusively settled by submission to arbitration (the “Arbitration”). If You are domiciled in Canada, the Arbitration will be conducted in accordance with the rules of arbitration of the Arbitration Act, 1991 (Ontario). If You are domiciled outside of Canada, the Arbitration will be conducted in accordance with the rules of arbitration of the Model Law as set out in the Schedule to the International Commercial Arbitration Act (Ontario). The language of the Arbitration shall be English. This Section does not apply to Québec consumers.
- Injunctive Relief. Notwithstanding anything else in this Agreement and without prejudice to the right of the parties to submit the matter to arbitration in accordance with this Agreement, Perle (in its sole discretion) will have the right to seek injunctive relief or equitable relief against You, and the parties agree that if Perle seeks injunctive or equitable relief in the courts of the province of Ontario, Canada then the courts of the province of Ontario, Canada will have jurisdiction to resolve such injunctive or equitable proceedings.
- Assignment. You may not assign Your rights, duties or obligations under this Agreement except to a related, affiliated or associated company by way of reorganization of You or a successor to substantially all of Your assets and undertaking, without the prior written consent of Perle. Any permitted assignment by You under this Section will be conditional upon You delivering all copies of the Perle Software to the transferee along with a copy of this Agreement, the transferee accepting the terms and conditions of this Agreement, and Your license to the Perle Software terminating upon transfer.
Specific Requirements for Australia. If You are a resident of Australia and You purchased from Perle goods or services (i) valued at $40,000 Australian or less, or (ii) of a kind ordinarily acquired for personal, domestic or household use, then Sections 1, 7, 8, and 10 of this Agreement are subject to the following:
- Australian Consumer Law. Under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth) ("Australian Consumer Law") and is replicated in the relevant Fair Trading Acts (and Consumer Affairs and Fair Trading Acts) of Australian states and territories ("FTAs"), certain statutory guarantees ("Consumer Guarantees") are conferred in relation to the supply of goods or services if: (a) the goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption ("PDH Goods or Services"); or (b) the price of the goods or services is $40,000 Australian or less. These include guarantees that services are provided with due skill and care, and that goods are of acceptable quality, are fit for the purpose described, match any description or sample and are free from defects and faults. If these Consumer Guarantees are not met, the consumer may be entitled (in the case of services) to the service resupplied, to payment for the cost of having it supplied again by someone else or to compensation, and (in the case of goods) to a refund or an alternative to a refund (such as an exchange or repair) and to compensation from the supplier or to compensation from the manufacturer. If the goods or services supplied under this Agreement are PDH Goods or Services, the operation of the Consumer Guarantees cannot be, and are not in this Agreement, excluded or limited. If: (a) the goods or services supplied under this Agreement are not PDH Goods or Services; and (b) the price of those goods or services is $40,000 Australian or less, if Perle is the supplier of those goods or services, then Perle can, and does, limit its liability of breach of any Consumer Guarantee to (at Perle's option): (i) in the case of goods, repairing or replacing the goods or paying the cost of having the goods repaired or replaced; and (ii) in the case of services, re-supplying the services or the cost of having the services re-supplied, and Perle does not exclude or limit the operation of the Consumer Guarantees under any other provision of this Agreement or in any other manner. Except for the Consumer Guarantees and the warranties and conditions set out in this Agreement, Perle excludes all warranties and conditions implied by statute, at law, in fact or otherwise.
- Consumer Guarantees. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
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