THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND HORIZON DATASYS INC.. (“HORIZON DATASYS INC.”), FOR HORIZON DATASYS INC. SOFTWARE PRODUCT(S) IDENTIFIED ABOVE, WHICH INCLUDES COMPUTER SOFTWARE AND ASSOCIATED MEDIA AND PRINTED MATERIALS, AND MAY INCLUDE “ONLINE” OR ELECTRONIC DOCUMENTATION AND SUPPORT/HELP INFORMATION (“SOFTWARE PRODUCT” OR “SOFTWARE”). BY INSTALLING, COPYING, OR OTHERWISE USING REBOOT RESTORE RX, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA.
THIS SOFTWARE LICENSE AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER.THIS AFFECTS YOUR RIGHTS TO RESOLVE A DISPUTE WITH HORIZON DATASYS INC., AND YOU SHOULD READ THEM CAREFULLY. FOR EXAMPLE, EXCEPT IF YOU OPT OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “Agreement to Arbitrate – U.S. Customers” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND HORIZON DATASYS INC WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. REBOOT RESTORE RX, REBOOT RESTORE RX PROFFESIONAL, ROLLBACK RX HOME, AND ROLLBACK RX PROFESSIONAL ARE PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. REBOOT RESTORE RX, ROLLBACK RX HOME ARE LICENSED, NOT SOLD.
GRANT OF LICENSE
HORIZON DATASYS INC IS WILLING TO LICENSE SOFTWARES TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL THE TERMS CONTAINED IN THIS AGREEMENT. BY CLICKING TO ACCEPT WHERE INDICATED BELOW OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU HAVE INDICATED THAT YOU UNDERSTAND THIS AGREEMENT AND ACCEPT ALL OF ITS TERMS. IF YOU ARE ACCEPTING THE TERMS OF THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THE TERMS OF THIS AGREEMENT, AND, IN SUCH EVENT, “YOU” AND “YOUR” WILL REFER TO THAT COMPANY OR OTHER LEGAL ENTITY. IF YOU
DO NOT ACCEPT ALL THE TERMS OF THIS AGREEMENT, THEN HORIZON DATASYS INC. IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU MUST RETURN THE SOFTWARE TO THE PLACE OF PURCHASE FOR A REFUND, IF YOU HAVE PAID FOR THE LICENSE TO THE SOFTWARE, OR, IF HORIZON DATASYS INC, HAS MADE THE SOFTWARE AVAILABLE TO YOU WITHOUT CHARGE, YOU MUST DESTROY ALL COPIES OF THE SOFTWARE.YOUR RIGHT TO RETURN THE SOFTWARE FOR A REFUND EXPIRES 30 DAYS AFTER THE DATE OF PURCHASE.
(a) Freeware & Trial License.
If you have obtained a free, trial or evaluation version of the Software from Horizon DataSys Inc. or from an authorized Horizon DataSys Inc. reseller, then conditioned upon your compliance with the terms and conditions of this Agreement, Horizon DataSys Inc. grants you a non-exclusive and non-transferable license to execute the Software solely in executable form. The foregoing license permits Execution of only such number of copies of the Software, and on such number of devices, computers or virtual machines (“Devices”), as is expressly permitted by Horizon DataSys Inc. with respect to your trial. If no such number of copies or Devices is specified by Horizon DataSys Inc., the foregoing license permits Execution of a single copy of the Software on a single Device, for a single user.. For purposes of this Agreement, “Execute” and “Execution” means to load, install, and/or run the Software locally on a single Device in order to benefit from its functionality as designed by Horizon DataSys Inc.
(b) Paid License.
If you purchased a license to the Software from Horizon DataSys Inc or from an authorized Horizon DataSys Inc. reseller, then conditioned upon your compliance with the terms and conditions of this Agreement, Horizon DataSys Inc grants you a non-exclusive and non-transferable license to Execute the number of copies of the Software for which you have paid solely in executable form on the corresponding number of Devices owned or used by you. If you have acquired this EULA in a Multi-User License Pack for Reboot Restore Rx Professional or Rollback Rx Professional, you may make the number of additional copies of the computer software portion of Rollback Rx Professional and Reboot Restore Rx Professional authorized on the printed copy of this EULA, and you may use each copy in the manner specified above. A license for Reboot Restore Rx Professional and Rollback Rx Professional may not be used concurrently on different computers.
(a) Reboot Restore Rx and Rollback Rx: Home– Freeware.
If you are a Reboot Restore Rx for Home,and whether you have a free or paid license, this Section 2(a) applies. Your license permits you to use the Software solely for your personal, non-commercial purposes; the Software may not be used on any Device that is used in a business or for business purposes. Once Executed on a Device, you may transfer the Software to a different Device, provided that you uninstall and remove the Software from the first Device. You may not combine the Software with any third party script, application, hardware or tools which would cause it to run on an automated or unattended basis. You may not transfer the Software to a different user, except that once installed onto a Device, the Software may be operated by any person directly using the Device (i.e., not remotely), provided that you are responsible for each such person’s operation of the Software. You may make one copy of the Software for back-up or archival purposes, or copy the Software onto the hard disk of your Device and retain the original for back-up or archival purposes. Notwithstanding the second sentence of this Section 2(a), if you have a business or organization with no more than 5 total Devices, you may use Reboot Restore Rx or Rollback Rx: Home in your business for business purposes provided that your usage shall be governed by the terms and conditions of this Agreement applicable to Reboot Restore Rx and Rollback Rx: Home freeware users and not the terms and conditions applicable to business users. (“Small Business Exception”). If you use the Small Business Exception, references Reboot Restore Rx, and/or Rollback Rx:Home may be read as governing your usage of the Software.
(b) Reboot Restore Rx: Professional and Rollback Rx: Professional– Paid.
If you are a Reboot Restore Rx: Professional and/or Rollback Rx: Professional, and you have a trial license, your license permits you to use the Software solely for evaluation purposes, and not for production use. You may also use our Software downloaded via our websites download link to evaluate up to 5 devices in you organization for 14 days. If you are a Reboot Restore Rx: Professional and/or Rollback Rx: Professional user, and you have a paid license, your license permits you to use the Software solely for your internal business purposes. Other than the limited exception stated in the immediate following sentence, once Executed on a Device. You may transfer the license to a different Device only if you uninstall and remove the Software from the first Device. If you are a Reboot Restore Rx:Professional and/or Rollback Rx: Professional user, and whether you have a free or paid license: (i) you may make a reasonable number of copies of the Software for back-up or archival purposes; (ii) the Software may only be used by your employees and consultants (“Authorized Users”), who have agreed to abide by the terms of this Agreement and who may only use the Software for the purposes of performing their job functions for you; (iii) you are responsible for the use of the Software by your Authorized Users (and their compliance with this Agreement); and (iv) once Executed on a Device, the Software may be operated by any Authorized User using the Device, directly or (where that person is providing support services to you with respect to that Device) via remote connection; provided that each such Device is running an authorized copy of the applicable Software. You may install and use one copy of Reboot Restore Rx: Professional or Rollback Rx: Professional (One or the other) on a single computer at a time and only by one user at a time. You may also store or install a copy of Reboot Restore Rx: Professional or Rollback Rx: Professional on a storage device, such as a network server, used only to install or run Reboot Restore Rx on your other computers over an internal network; however, you must acquire and dedicate a license for each separate computer on which Reboot Restore Rx is installed or run from the storage device
You must have a license to the Software for every Device on which you operate the Software. You may run the Software on a network, provided that you have a license to the Software for each: (1) Device that the Software is Executed on; and (2) Device or user instance that can access the Software over that network that is not included in (1). Reboot Restore Rx and Rollback Rx (Freeware and paid) is licensed as a single product. Its component parts may not be separated for use on more than one computer. You may not rent or lease Reboot Restore Rx and Rollback Rx (Freeware and paid), unless specifically licensed by Horizon DataSys Inc. for such purpose under a separate written agreement. You may permanently transfer all of your rights under this EULA, provided you retain no copies, you transfer all of Reboot Restore Rx or Rollback Rx (including all component parts, the media and printed materials, any upgrades and this EULA), and the recipient agrees to the terms of this EULA. If this software is an upgrade, any transfer must include all prior versions of the aforementioned software. Accordingly, you agree not to disassemble, decompile or reverse engineer the Software or Database (defined below), in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this limitation. You will comply with any additional restrictions contained in your Purchase Receipt or other purchasing documentation.
Each copy of the Software is licensed, not sold. For purposes of this Agreement, the terms “purchase,” “sell” and like terms refers to purchase or sale of a license to use the Software and not to a purchase or sale of title to or ownership of any rights or other interests in the Software. You own the media on which the Software is recorded, but you acknowledge and agree that Horizon DataSys Inc retains ownership of the Software itself and any related data or databases used by Horizon DataSys Inc or the Software (the “Database”), including all intellectual property rights therein. The Software and Database are protected by U.S. copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software as delivered to you. Horizon DataSys Inc reserves all rights in the Software and Database not expressly granted to you in this Agreement.
From time to time, Horizon DataSys Inc may, but has no obligation to, provide updates to the Software. You are advised to update the Software regularly. If you are a paying customer with a current Annual Maintenance subscription, Horizon DataSys Inc will make available to you at no additional cost the standard updates and support that are made generally available at no additional cost to paying subscribers in accordance with Horizon DataSys Inc policies from time to time. Nothing in this Agreement entitles you to receive any support, maintenance, updates, upgrades, content or new versions of the Software, unless you are a paying customer with a current Annual Maintenance subscription. Horizon DataSys Inc reserves the right to designate any updates, additional content or features as requiring separate payment or purchase of a separate subscription at any time. Horizon DataSys Inc specifically reserves the right to cease providing, updating, or maintaining the Software or Database at any time in its sole discretion. If you have entered into a separate maintenance and support or similar agreement with Horizon DataSys Inc, then Horizon DataSys Inc will provide Software maintenance and support in accordance with the terms of that agreement, not this Agreement.
(a) Reboot Restore, Rollback Rx: Home – Free License Term.
If you have obtained a license to a free version of the Software, then your license will continue until terminated in accordance with this Agreement.
(b) Reboot Restore Rx: Professional, Rollback Rx: Professional- Trial License Term.
If you have obtained a trial license to the Rollback Rx or Reboot Restore: Professional, then your license will continue for such time period as may be specified by Horizon DataSys Inc with respect to such trial (or, if no such period is specified, for 14 days). In addition, Horizon DataSys Inc may terminate your trial license at any time at its sole discretion.
(d) Termination Rights.
You may terminate the license at any time by destroying all copies of the Software in your possession or control. The license granted under this Agreement will automatically terminate, with or without notice from Horizon DataSys Inc, if you breach any term of this Agreement.If you are using the Reboot Restore Rx and/or Rollback Rx: Professional trial license, your license to the Software ends automatically at the end of the applicable trial period. If you are a Reboot Restore or Rollback Rx: Professional customer, you acknowledge that upon expiration or termination of your license, the Software and any license key may automatically de-activate and you may no longer be able to access and use the Software. If you assert any patents against us or any of our other customers based on use of the Software, your license to the Software ends automatically.
(e) Effect of Termination.
Upon termination or expiration of this Agreement, your rights to use the Software will cease.
- Payment Terms.
The price payable by you is the price stated in the Purchase Receipt or applicable purchasing documentation (or, if no such price is specified, the price set out in our then-current standard published price list). Our prices are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). If we issue an invoice to you, all invoices are payable within 30 days of the invoice date unless specified differently in the invoice or purchasing documentation. You are responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made to us, other than any taxes based on Horizon D ataSys Inc net income. All amounts are payable and charged at the time and date of purchase.
- Limited Warranty; Disclaimer.
Horizon DataSys Inc warrants that any physical media manufactured by Horizon DataSys Inc on which the Software is distributed will be free from defects for a period of 30 days from the date of delivery of the Software to you. Your sole and exclusive remedy, and Horizon DataSys Inc sole liability, in the event of a breach of the foregoing warranty will be that Horizon DataSys Inc will, at its option, replace any defective media returned to Horizon DataSys Inc within the warranty period or refund the money you paid for the Software. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (a) THE LIMITED WARRANTY SET FORTH IN THIS SECTION 8 IS EXCLUSIVE AND LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED; AND (b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 8, HORIZON DATASYS INC DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HORIZON DATASYS INC OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. Horizon DataSys Inc does not warrant that the Software will meet your requirements, that the Software will operate in the combinations, on the operating system or in the environments that you may select for Execution, that the operation of the Software will be error-free or uninterrupted, or that all Software errors will be corrected. Horizon DataSys Inc specifically disclaims any warranty or representation as to the Software’s ability to eliminate any specific malware threats or the completeness of the Database or protection modules. You are solely responsible for the data, software and other content carried on your Devices and for backing-up your data, software and other content.
- Limitation of Liability.
HORIZON DATASYS INC’ TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AMOUNTS PAID TO HORIZON DATASYS INC BY YOU FOR THE SOFTWARE DURING THE 6 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT WILL HORIZON DATASYS INC BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT HORIZON DATASYS INC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
- Export Law.
You agree to comply fully with all U.S. and other applicable export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
- Feedback; Marketing.
If you provide any ideas, suggestions, or recommendations regarding the Software or the Horizon DataSys Inc will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. By providing Feedback, you grant Horizon DataSys Inc a worldwide, perpetual, irrevocable, sublicenseable, fully-paid and royalty-free license to use and exploit in any manner such Feedback. If you are using any of Horizon DataSys Inc. Software’s in a business or for business purposes, you grant Horizon DataSys Inc. the right to use your trade name (and the corresponding trademark or logo) on the Horizon DataSys Inc. website and marketing materials to identify you as a customer.
- Distribution License Agreement
Rollback Rx: Professional and Reboot Restore Rx: Professional may be distributed in its free trial ware version only by an agent, customer or distributor (e.g. shareware software distribution website) of Horizon DataSys Inc. with Internet or Intranet based online services, electronic bulletin boards or other electronic distribution media provided:
(a) The Software is distributed in its entirety, unmodified and at no cost to the customer.
(b) Agents, End Users or distributors of Horizon DataSys Inc.’s Software are expressly forbidden to conduct or complete all or parts of the following tasks without the express written consent of Horizon DataSys Inc.,
(c) Distributed the Software on CD-ROM, disk, or other physical media with or without a fee.
(d) Alter this software in any way, including but not limited to changing, modifying or removing any messages or windows.
(e) Decompile, reverse engineer, disassemble or otherwise reduce this software to a human perceivable form.
(f) Modify, rent or resell for profit this software, or create derivative works based upon this software.
(g) Publicize or distribute any registration code algorithms, information, or registration codes used by this software.
Horizon DataSys Inc. expressly does not grant any distribution rights with this trialware free-version distribution license agreement to end users, customers, agents, distributors or other company representatives for paid or site licensed versions of Horizon DataSys Inc. Software.
13. Agreement to Arbitrate – U.S. Horizon Datasys Inc Customers.
(a) Agreement to Arbitrate:
If you are a Rollback Rx or Reboot Restore Rx customer and acquired the Software in the U.S. resident, you and Horizon Datasys Inc agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Software (collectively, “Disputes“) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action“). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Horizon Datasys Inc with written notice of your desire to do so by email to email@example.com within 30 days following the date you first purchase or obtain the Software (such notice, an “Arbitration Opt-out Notice“). If you don’t provide Horizon Datasys Inc with an Arbitration Opt-out Notice within the 30 day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Client with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Client with an Arbitration Opt-out Notice, you acknowledge and agree that you and Horizon Datasys Inc are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Horizon Datasys Inc otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Section will be deemed void. Except as provided in the preceding sentence, this Section will survive any termination of this Agreement.
(b) Arbitration Rules:
The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules“) then in effect, except as modified by this Section. (The AAA Rules are available at www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
(c) Arbitration Process:
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents). The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
(d) Arbitration Location and Procedure:
Unless you and Horizon Datasys Inc otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Horizon Datasys Inc submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
(e) Arbitrator’s Decision:
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of Section 9 (“Limitation of Liability”) as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Horizon Datasys Inc will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Horizon Datasys Inc will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
If you have any questions regarding this Agreement, you may contact Horizon DataSys Inc.