Fluency Product License Agreement/EULA and Warranty Terms

Effective date: January 1, 2021

 

Trademarks and Copyright Statement

Fluency® is a registered trademark of Fluency Corp. and other Fluency names may also be trademarks, registered or otherwise, of Fluency. All other product or company names may be trademarks of their respective owners. Copyright © 2016 Fluency, Inc., All Rights Reserved. Contents and terms are subject to change by Fluency without prior notice. No part of this publication may be reproduced in any form or by any means or used to make any derivative such as translation, transformation, or adaptation without permission from Fluency, Corp., as stipulated by the United States Copyright Act of 1976.

Product License Agreement

This Agreement sets forth the terms and conditions of your use of the accompanying Fluency software (the “Software). For the purposes of this Agreement, “you” means you, the end-user.

 

1. License Grant.

This is a license, not a sales agreement, between you and Fluency. The term "Software", as used throughout this Agreement, includes all Fluency and third party firmware and software provided to you with, or incorporated into, Fluency appliances and any stand-alone software provided to you by Fluency, with the exception of any open source software contained in Fluency’s Products which is discussed in detail in section 14 below, and the term “Software” includes any accompanying documentation, any updates and enhancements of the software or firmware provided to you by Fluency, at its option. Fluency grants to you a non-transferable (except as provided in section 5 ("Transfer") and section 14 ("Open Source Software") below), non-exclusive, revocable (in the event of your failure to comply with these terms or in the event Fluency is not properly paid for the applicable Product) license to use the Software solely for your internal business purposes, in accordance with the terms set forth in this Agreement and subject to any further restrictions in Fluency documentation, and solely on the Fluency appliance on which Fluency installed the Software or, for stand-alone Software, solely on a single computer running a validly licensed copy of the operating system for which the Software was designed unless and except set forth in the published documentation otherwise. The Software is "in use" on any Fluency appliances when it is loaded into temporary memory (i.e. RAM). You agree that, except for the limited, specific license rights granted in this section 1, you receive no license rights to the Software.

2. Limitation on Use.

You may not attempt to, and, if you are a corporation, you are responsible to prevent your employees and contractors from attempting to, (a) modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, sublicense, or distribute the Software; (b) rent or lease any rights in the Software in any form to any third party or make the Software available or accessible to third parties in any other manner; (c) except as provided in section 5, transfer assign or sublicense right to any other person or entity, (d) remove any proprietary notice, labels, or marks on the Software, Products, and containers, or (e) use the Software for third-party training, commercial time-sharing or service bureau use or use the Software to provide services to third parties except as expressly set forth in this Agreement.

3. Proprietary Rights.

All rights, title, interest, and all copyrights to the Software and any copy made thereof by you and to any Product remain with Fluency. You acknowledge that no title to the intellectual property in the Software or other Products is transferred to you and you will not acquire any rights to the Software or other Products except for the specific license as expressly set forth in section 1 (“License Grant”) above. You expressly agree and acknowledge that Fluency owns and shall retain all intellectual property rights in and to, and you have no intellectual property rights in and to, the Products and the Software other than the License Grant. You agree to keep confidential all Fluency confidential information and only to use such information for the purposes for which Fluency disclosed it.

4. Term and Termination.

Except for evaluation and beta licenses or other licenses, such as subscription licenses, where the term of the license is limited per the evaluation/beta or other agreement, in the ordering documents or otherwise, the term of the license is for the duration of Fluency's copyright in the Software. Fluency may terminate this Agreement, and the licenses and other rights herein, immediately without notice if you breach or fail to comply with any of the terms and conditions of this Agreement or for other reasons as stated in Fluency’s other documentation. You agree that, upon such termination, you will cease using the Software and any Product and either destroy all copies of the Fluency documentation or return all materials to Fluency.

5. Transfer.

If you are a Fluency contracted and authorized reseller or distributor of Products, you may transfer (but not rent or lease unless specifically agreed to in writing by Fluency) the Software to one end user on a permanent basis, provided that: (i) you ensure that your customer and the end user receives a copy of this Agreement, is bound by its terms and conditions, and, by selling the Product or Software, you hereby agree to enforce the terms in this Agreement against such end user, (ii) you at all times comply with all applicable United States export control laws and regulations, and (iii) you agree to refund any fees paid to you by an end user who purchased Product(s) from you but does not agree to the terms contained in this Agreement and therefore wishes to return the Product(s) as provided for in this Agreement. Further, if you are a non-authorized reseller of Products, you are not authorized to sell Product(s) or Software, but, regardless, by selling Product(s) or Software, you hereby agree you are bound by the restrictions and obligations herein and are bound to: (i) ensure that your customer and the end user receive a copy of this Agreement and are bound in full by all restrictions and obligations herein (ii) enforce the restrictions and obligations in this Agreement against such customer and/or end user, (iii) comply with all applicable United States export control laws and regulations and all other applicable laws, and (iv) refund any fees paid to you by a customer and/or end user who purchased Product(s) from you but does not agree to the restrictions and obligations contained in this Agreement and therefore wishes to return the Product(s) as provided for in this Agreement. Notwithstanding anything to the contrary, distributors, resellers and other Fluency partners (a) are not agents of Fluency and (b) are not authorized to bind Fluency in any way.

 
6. Limited Warranty.

Fluency provides this limited warranty for its product only to the single end-user person or entity that originally purchased the Product from Fluency or its authorized reseller or distributor and paid for such Product. The warranty periods are determined by the terms of the contract. All warranty claims must be submitted in writing to Fluency before the expiration of the warranty term or such claims are waived in full. Fluency provides no warranty for any beta, donation or evaluation Products, for any spare parts not purchased directly from Fluency by the end-user, for any accessories, or for any stand-alone software. Fluency warrants that the software as initially shipped with the Hardware Products will substantially conform to Fluency's then current functional specifications for the Software, as set forth in the applicable documentation for a period of ninety (90) days ("Software Warranty Period”). Fluency's sole obligation shall be to repair or offer replacement Software for the non-conforming Software with software that substantially conforms to Fluency's functional specifications. This obligation is exclusive of transport fees, labor, de-installation, installation, reconfiguration, or return shipment and handling fees and costs, and Fluency shall have no obligation related thereto. Except as otherwise agreed by Fluency in writing, the warranty replacement Software is provided only to the original licensee, and is subject to the terms and conditions of the license granted by Fluency for the Software.

 
7. Disclaimer of Other Warranties and Restrictions.

EXCEPT FOR THE LIMITED WARRANTY SPECIFIED IN SECTION 6 ABOVE, THE PRODUCT AND SOFTWARE ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY, IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, OR WARRANTY FOR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IF ANY IMPLIED WARRANTY CANNOT BE DISCLAIMED IN ANY TERRITORY WHERE A PRODUCT IS SOLD, THE DURATION OF SUCH IMPLIED WARRANTY SHALL BE LIMITED TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL SHIPMENT FROM Fluency. EXCEPT AS EXPRESSLY COVERED UNDER THE LIMITED WARRANTY PROVIDED HEREIN, THE ENTIRE RISK AS TO THE QUALITY, SELECTION AND PERFORMANCE OF THE PRODUCT IS WITH THE PURCHASER OF THE PRODUCT. YOU HEREBY ACKNOWLEDGE AND AGREE THAT NO VENDOR CAN ASSURE COMPLETE SECURITY AND NOTHING HEREIN OR ELSEWHERE SHALL BE DEEMED TO IMPLY A SECURITY GUARANTEE OR ASSURANCE.
The warranty in Section 6 above does not apply if the Software, Product or any other equipment upon which the Software is authorized to be used (a) has been altered, except by Fluency or its authorized representative, (b) has not been installed, operated, repaired, updated to the latest version, or maintained in accordance with instructions supplied by Fluency, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; (d) is licensed for beta, evaluation, donation, testing or demonstration purposes or for which Fluency does not charge a purchase price or license fee. In the case of beta, testing, evaluation, donation or free Software or Product, the end user acknowledges and agrees that such Software or Product may contain bugs or errors and could cause system failures, data loss and other issues, and the end user agrees that such Software or Product is provided “as-is” without any warranty whatsoever, and Fluency disclaims any warranty or liability whatsoever. An end user’s use of evaluation or beta Software or Product is limited to thirty (30) days from original shipment unless otherwise agreed in writing by Fluency.

 
8. Governing Law.

Any disputes arising out of this Agreement or Fluency’s limited warranty shall be governed by the laws of the Commonwealth of Virginia, without regard to the conflict of laws principles. In the event of any disputes arising out of this Agreement or Fluency’s limited warranty, the parties submit to the jurisdiction of the federal and state courts located in Virginia, as applicable.

 
9. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, FLUENCY IS NOT LIABLE UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, INFRINGEMENT OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOSS OF USE OF THE PRODUCT OR SERVICE OR ANY DAMAGES OF ANY KIND WHATSOEVER, WHETHER DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFIT, LOSS OF OPPORTUNITY, LOSS OR DAMAGE RELATED TO USE OF THE PRODUCT OR SERVICE IN CONNECTION WITH HIGH RISK ACTIVITIES, DE-INSTALLATION AND INSTALLATION FEES AND COSTS, DAMAGE TO PERSONAL OR REAL PROPERTY, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, COMPUTER SECURITY BREACH, COMPUTER VIRUS INFECTION, LOSS OF INFORMATION OR DATA CONTAINED IN, STORED ON, OR INTEGRATED WITH ANY PRODUCT INCLUDING ANY PRODUCT RETURNED TO FLUENCY FOR WARRANTY SERVICE) RESULTING FROM THE USE OF THE PRODUCT, RELATING TO WARRANTY SERVICE, OR ARISING OUT OF ANY BREACH OF THE LIMITED WARRANTY IN SECTION 6 ABOVE, EVEN IF FLUENCY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOLE REMEDY FOR A BREACH OF THE LIMITED WARRANTY IS REPAIR, REPLACEMENT OR REFUND OF THE DEFECTIVE OR NON- CONFORMING PRODUCT AS SPECIFICALLY STATED IN SECTION 6 ABOVE.

 
10. Import/Export Requirements; FCPA Compliance.

You are advised that the Products may be subject to the United States Export Administration Regulations and other import and export laws; diversion contrary to United States law and regulation is prohibited. You agree to comply with all applicable international and national laws that apply to the Products as well as end user, end-use, and destination restrictions issued by U.S. and other governments. For additional information on U.S. export controls see www.bis.doc.gov. Fluency assumes no responsibility or liability for your failure to obtain any necessary import and export approvals, and Fluency reserves the right to terminate or suspend shipments, services and support in the event Fluency has a reasonable basis to suspect any import or export violation. You represent that neither the United States Bureau of Industry and Security nor any other governmental agency has issued sanctions against you or otherwise suspended, revoked or denied your export privileges. You agree not to use or transfer the Products for any use relating to nuclear, chemical or biological weapons, or missile technology, unless authorized by the United States Government by regulation or specific written license. Additionally, you agree not to directly or indirectly export, import or transmit the Products contrary to the laws or regulations of any other governmental entity that has jurisdiction over such export, import, transmission or use. Furthermore, you represent that you understand, and you hereby agree to comply with, all requirements of the U.S. Foreign Corrupt Practices Act and all other applicable laws. For beta, testing, evaluation, donation or free Products and/or related services, you hereby agree, represent and warrant to Fluency that (a) receipt of the Products and/or services comply with all policies and you have obtained all necessary approvals for such Products and/or services, (b) the Products and/or services are not provided in exchange for Fluency maintaining current business or for new business opportunities, and (c) the Products and/or services are not being received for the benefit of, and are not being transferred to, any government entity, representative or affiliate.

 
11. U.S. Government End Users.

The Software and accompanying documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement and its successors.

 
12. Tax Liability.

You agree to be responsible for payment of any sales or use taxes imposed at any time on this transaction.

 
13. General Provisions.

Except as specifically permitted and required in section 5 (“Transfer”) above, you agree not to assign this Agreement or transfer any of the rights or obligations under this Agreement without the prior written consent of Fluency. This Agreement shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. The United Nations Convention on Contracts for the International Sales of Goods is expressly excluded. This Agreement and other Fluency agreements may be amended or supplemented only by a writing that refers explicitly to the agreement signed on behalf of both parties, or, for this Agreement, as otherwise expressly provided in the lead-in above Section 1 above, provided, notwithstanding anything to the contrary and except for this Agreement which may be amended or updated as expressly provided in the lead-in above Section 1 above, for any amendment or other agreement to be binding on Fluency, such amendment or other agreement must be signed by Fluency’s General Counsel. No waiver will be implied from conduct or failure to enforce rights nor effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any part of this Agreement is found unenforceable, that part will be enforced to the maximum extent permitted and the remainder shall continue in full force and effect. You acknowledge that you have read this Agreement, understand it, and agree to be bound by its terms and conditions.

 
14. Open Source Software.

Fluency’s products may include software modules that are licensed (or sublicensed) to the user under the GNU General Public License, Version 2, of June 1991 (“GPL”) or GNU Lesser General Public License, Version 2.1, of February 1999 (“LGPL”) or other open source software licenses which, among other rights, permit the user to use, copy, modify and redistribute modules, or portions thereof, and may also require attribution disclosures and access to the source code ("Open Source Software"). The GPL requires that for any Open Source Software covered under the GPL, which is distributed to someone in an executable binary format, that the source code also be made available to those users. For any Open Source Software covered under the GPL, the source code is made available on this CD or download package. If any Open Source Software licenses require that Fluency provide rights to use, copy or modify a Open Source Software program that are broader than the rights granted in this agreement, then such rights shall take precedence over the rights and restrictions herein. Fluency will provide, for a charge reflecting our standard distribution costs, the complete machine-readable copy of the modified software modules. The copyright holders provide these software modules “AS-IS” without warranty of any kind, either expressed or implied. In no event will the copyright holder for the open source software be liable to you for damages, including any special, incidental or consequential damages arising out of the use or inability to use the software modules, even if such holder has been advised of the possibility of such damages.

 
15. Indemnification.

You agree to defend, indemnify and hold Fluency harmless from and against liabilities, damages, and expenses (including settlement costs and reasonable attorneys’ fees) arising from any claims from anybody that result from or relate to your use of the Software.

 
16. Severability.

In the event that any provision of this Agreement is found to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any of the remaining provisions shall not in any way be affected or impaired.

 
17. Entire Agreement.

You agree that this Agreement is the complete and exclusive statement of the agreement between you and Fluency and supersedes all proposals or prior agreements, oral or written, and all other communications between you and Fluency relating to the subject matter of this Agreement.