IMPORTANT-READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and Mountain Fog, Inc. (“Mountain Fog”) for the software product accompanying this EULA, which includes computer software and may include associated media, printed materials, and online or electronic documentation (“SOFTWARE PRODUCT”). By installing, copying, or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not install, copy, or use the SOFTWARE PRODUCT.
1. GRANT OF LICENSE
In consideration of your payment of applicable license fees, Mountain Fog hereby grants to you, and you accept, a nonexclusive, nontransferable license to install and use the SOFTWARE PRODUCT per the terms of the purchase agreement. If the SOFTWARE PRODUCT license is purchased through the Amazon Web Services Marketplace or Microsoft Azure Marketplace or other online third-party marketplace, the terms of purchase will be defined by the terms (such as, but not limited to, compute instance size) of the subscription options chosen through the marketplace.
2. LICENSE RESTRICTIONS
(a) You agree not to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the SOFTWARE PRODUCT (as applicable) in any form or media or by any means. You agree not to attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the SOFTWARE PRODUCT.
(b) You agree not to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the SOFTWARE PRODUCT (as applicable) in any form or media or by any means.
(c) You agree not to attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the SOFTWARE PRODUCT for any purpose.
(d) You agree not to not to use the SOFTWARE PRODUCT to provide services to third parties or for any purpose, and to not to license, sell, rent, lease, transfer, assign, sublicense, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the SOFTWARE PRODUCT available to any third party.
3. PROPRIETARY RIGHTS
Mountain Fog owns all right, title and interest in and to the Software including, without limitation, all intellectual and proprietary rights appurtenant thereto, and, except for the limited license granted to you herein, nothing in this EULA shall be construed to transfer, convey, impair or otherwise adversely affect Mountain Fog’s ownership or proprietary rights therein or any other Mountain Fog information or materials, tangible or intangible, in any form and in any medium.
4. CHANGE IN POLICIES
Mountain Fog reserve the right to change these policies at any time. While it is not our intention to do so, there may be factors outside of our control that require us to implement changes to our policies.
All title and copyrights in and to the SOFTWARE PRODUCT (including but not limited to any images and text incorporated into the SOFTWARE PRODUCT), the accompanying printed materials, and any copies of the SOFTWARE PRODUCT are owned by Mountain Fog or its suppliers. The SOFTWARE PRODUCT is protected by copyright laws and international treaty provisions. Therefore, you must treat the SOFTWARE PRODUCT like any other copyrighted material. You may not copy the printed materials, if any, accompanying the SOFTWARE PRODUCT.
6. OPEN SOURCE LICENSES
The SOFTWARE PRODUCT is bundled with open source software components, some of which fall under different licenses. By using the SOFTWARE PRODUCT or any of the bundled components, you agree to be bound by the conditions of the license for each respective component. For more information on the components and their licenses see the NOTICE.txt file accompanying the SOFTWARE PRODUCT.
7. REFUND POLICY
We have a no refund policy on the SOFTWARE PRODUCT. We do this because we offer free, fully functional trial versions for all of our software this way you can download and try before you buy. Purchases made through a third-party marketplace will be governed by the marketplace’s refund policy as necessary.
We have the right to terminate this license and your right to use the SOFTWARE PRODUCT at any time in the event we reasonably believe you have failed to comply with any term or condition of this EULA. If this license or your right to use the SOFTWARE PRODUCT terminates for any reason or you must stop all use of the SOFTWARE PRODUCT and either return to us or destroy the SOFTWARE PRODUCT and all copies of the SOFTWARE PRODUCT that are in your possession or under your control. We may ask you to certify your compliance with the foregoing in writing, and you agree to do so if we request you to do so.
All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
9. U.S. GOVERNMENT RESTRICTED RIGHTS
The SOFTWARE PRODUCT and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Mountain Fog Inc, 238 High St Ste 108, Morgantown, WV 26505 USA.
10. EXPORT RESTRICTIONS
You agree that neither you nor your customers intend to or will, directly or indirectly, export or transmit (i) the SOFTWARE PRODUCT or related documentation and technical data or (ii) your software product, or process, or service that is the direct product of the SOFTWARE PRODUCT, to any country to which such export or transmission is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other governmental entity as may have jurisdiction over such export or transmission.
11. DISCLAIMER OF WARRANTY
THE SOFTWARE PRODUCT IS PROVIDED “AS-IS,” WITHOUT WARRANTY OF ANY KIND, AND ANY USE OF THE SOFTWARE PRODUCT IS AT YOUR OWN RISK. To the maximum extent permitted by applicable law, MOUNTAIN FOG and its suppliers disclaim all warranties AND CONDITIONS, either express or implied, including, but not limited to, implied warranties AND CONDITIONS of merchantability, fitness for a particular purpose, TITLE, AND NON-INFRINGEMENT, with regard to the SOFTWARE PRODUCT.
12. LIMITATION ON LIABILITY
To the maximum extent permitted by applicable law, in no event shall Mountain Fog or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the SOFTWARE PRODUCT, even if Mountain Fog has been advised of the possibility of such damages. In no event shall Mountain Fog’s liability exceed the price paid to Mountain Fog for the SOFTWARE PRODUCT.
You hereby agree to indemnify Mountain Fog and its officers, directors, employees, agents, and representatives from each and every demand, claim, loss, liability, or damage of any kind, including actual attorneys fees, whether in tort or contract, that it or any of them may incur by reason of, or arising out of, any claim which is made by any third party with respect to any breach or violation of this EULA by you or any claims based on the SOFTWARE PRODUCT included therein.
14. ENTIRE AGREEMENT
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU ALSO AGREE THAT THIS LICENSE IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN MOUNTAIN FOG AND YOU, WHICH SUPERSEDES ANY PROPOSAL, PRIOR AGREEMENT, OR LICENSE, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS EULA.
15. GOVERNING LAW AND INTERPRETATION
This EULA and all disputes, claims, actions, suits or other proceedings arising hereunder shall be governed by, and construed in accordance with, the substantive law of the State of West Virginia applicable to contracts wholly made and to be performed within the State of West Virginia. You agree to irrevocably submit to the sole and exclusive jurisdiction of the courts of West Virginia and the Federal courts of the Northern District of West Virginia. You further irrevocably consent to the exercise of personal jurisdiction by such courts and waive any right to plead, claim or allege that West Virginia is an inconvenient forum. No amendment, modification, waiver or discharge of any provision of this EULA shall be valid unless made in writing and signed by an authorized representative of Mountain Fog. No failure or delay by Mountain Fog to exercise any right or enforce any obligation shall impair or be construed as a waiver or on-going waiver of that or any or other right or power, unless made in writing and signed by Mountain Fog. If any provision of this EULA is held to be illegal, invalid or unenforceable, the remaining provisions of this EULA shall be unimpaired and remain in full force and effect.
YOU ACKNOWLEDGE THAT YOU HAVE READ THE ENTIRE AGREEMENT, UNDERSTAND IT, ACKNOWLEDGE YOU ARE BOUND BY IT AND AGREE TO FULLY COMPLY WITH ALL OF ITS TERMS AND CONDITIONS.