End User License Agreement


1. Definitions

a) “CHS” means Crow Hill Solutions

b) “Software” means the executable code of BinPlanner, additional tools, libraries, source files, header files, data files, any updates or error corrections provided by CHS, any user manuals, guides, printed materials, on-line or electronic documentation.

c) “Named User” is an individual authorized by You to use the Software through the assignment of a single user ID, regardless of whether or not the individual is using the Software at any given time. A non-human operated device is counted as a User in addition to all individuals authorized to use the Software, if such device can access the Software.

d) “Maintenance Plan” is a time-limited right to technical support and Software updates and upgrades. Technical support only covers issues or questions resulting directly out of the operation of the Software. CHS will not provide you with generic consultation, assistance, or advice under any other circumstances.

2. License Grants

2.1 This Software is licensed, not sold. CHS grants you a limited, non-exclusive, non-transferable license to:

a) use the Software on a Named User basis meaning specific individuals are authorized to access the Software and the total number of named users may not exceed the total number licensed by You.

b) copy the Software in machine-readable form solely for archival and backup purposes.

2.2 The Named User of the Software may install and use the Software on only one computer at one time. It may be freely migrated to another computer provided it is uninstalled from the original computer first.

3. License Restrictions

3.1 You shall undertake any necessary steps to protect the Software against unauthorized use.

3.2 You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.

3.3 You may not sell, rent, lease, sub license, transfer, resell for profit or otherwise distribute the Software or any part thereof.

3.4 You may not modify the Software or create derivative works based upon the Software.

3.5 You may not remove or obscure any copyright and trademark notices relating to the Software.

4. Ownership And Intellectual Property Rights

4.1 This Agreement gives you limited rights to use the Software. CHS retains all rights, title and interest in and to the Software and all copies thereof, including copyrights, patents, trade secret rights, trademarks and other intellectual property rights. All rights not specifically granted in this Agreement, including International Copyrights, are reserved by CHS. The structure, organization and code of the Software are valuable trade secrets and confidential information of CHS.

5. Limitation Of Liability

5.1 CHS’s cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the license fee paid to CHS for use of the Software.

5.2 CHS shall be relieved of any and all obligations for any portions of the software that are revised, changed, modified, or maintained by anyone other than CHS.

6. Patent And Copyright Indemnity

6.1 CHS represents and warrants that the Software shall not infringe or misappropriate any copyrights, patents, trade secret rights, trademarks and other intellectual property rights.

6.2 In the event the Software is found to infringe, CHS will have the option, at its expense, to

a) modify the Software to cause it to become non-infringing;

b) substitute the Software with other Software reasonably suitable to You, or

c) if none of the foregoing remedies are commercially feasible, terminate the license of the infringing Software and refund any license fees paid for that Software.

6.3 CHS will have no liability for any claim of infringement based on

a) code contained within the Software which was not created by CHS;

b) use of a superseded or altered release of the Software, except for such alteration(s) or modification(s) which have been made by CHS or under CHS’s direction, if such infringement would have been avoided by the use of a current, unaltered release of the Software that CHS provides to You, or

c) the combination, operation, or use of any Software furnished under this Agreement with programs or data not furnished by CHS if such infringement would have been avoided by the use of the Software without such programs or data.

7. Limited Warranties

7.1 The software is provided on an “as is” basis. CHS makes no warranty of any kind, express or implied, including without limitation any implied warranty or merchantability or fitness for a particular purpose. Without limitation, you assume sole responsibility for selecting the software to achieve your intended results and for the installation, use and results obtained from the software. CHS makes no warranty that the software will be error free or free from interruptions or other failures. In particular, the software is not designed for use in hazardous environments requiring fail-safe performance. CHS expressly disclaims any warranty of fitness for high-risk activities.

7.2 CHS warrants that it holds the proper rights allowing it to license the Software and is not currently aware of any actions that may affect its rights to do so.

7.3 CHS cannot guarantee that the Software will work at all times. If you change your operating system, the software may not work anymore. You acknowledge and agree that such changes are fair and reasonable.

7.4 You should make sure that it is legal to use the Software in your country or jurisdiction. CHS only provides a license for You to use the software. It is Your responsibility to make sure that You are allowed to use the Software.

7.5 CHS reserves the right at any time to cease the support of the Software and to alter prospectively the prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.

7.6 Neither CHS, the system’s author nor any other party involved in the preparation, publication or distribution of the Software shall be liable for any special, consequential, or exemplary damages resulting in whole or part from the Named User’s use of or reliance upon this system and the information contained within. CHS disclaims all warranties regarding such information whether express or implied, including any warranty as to the quality, accuracy, currency or suitability of this information for any particular purpose.

8. Maintenance Plan

8.1 At any time prior to the expiration of your Maintenance Plan and up to 14 days thereafter, you may purchase an extension to the current Maintenance Plan. This additional Maintenance Plan will extend the availability of your current Maintenance Plan for a period of time beginning with the date when your Maintenance Plan expires.

8.2 For a limited time after the expiration of your Maintenance Plan, you may purchase a renewal of your Maintenance Plan. This will provide you with a new Maintenance Plan that will begin at the date the renewal is purchased.

8.3 If you do not purchase any additional Maintenance Plan, you will still have the right to use the existing Software but you will lose the right to technical support and Software updates and upgrades as of the date your current Maintenance Plan expires.

8.4 For customers that purchase or already own multiple licenses, a Maintenance Plan must be purchased for each license.

8.5 Technical support is provided via electronic mail at the address specified on the web site and in the software. CHS will use its best efforts to provide you with technical support within seventy-two (72) business hours of your request.

9. Support

9.1 Except as provided herein, support for the Software is provided to you free of charge while your current Maintenance Plan is valid. If CHS discontinues any version of the Software, CHS reserves the right to limit or cease product support and updates for such discontinued version. CHS reserves the right to discontinue free support with thirty (30) days written notice posted to the CHS or the Software web site.

10. Internet-Based Services

10.1 Consent for Internet-Based Services. Certain Software features connect to CHS or service provider computer systems over the Internet. In some cases, you will not receive a separate notice when they connect. You may switch off these features or not use them. BY USING THESE FEATURES, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION. CHS does not use the information to identify or contact you.

10.2 Computer Information. The Software features use Internet protocols, which send to the appropriate systems computer information, such as your Internet protocol address, the type of operating system, browser and name and version of the software you are using, and the language code of the device where you installed the software. CHS uses this information to make the Internet-based services available to you.

10.3 Customer Experience Improvement Program (CEIP). The Software uses CEIP, which automatically sends to CHS anonymous information about your hardware and how you use this software. We may use the computer information, and CEIP information, to improve our software and services. We may also share it with others, such as hardware and software vendors. They may use the information to improve how their products run with CHS software.

11. High Risk Activities

11.1 The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). CHS and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.

12. Third Party Sites And Software

12.1 This Software could direct you to third party Web sites. CHS does not control, endorse, or guarantee content, including software, data or other information found on such third party sites. You agree that CHS is not responsible for any content, associated links, resources, or services associated with a third party site. You further agree that CHS shall not be liable for any loss or damage of any sort associated with your use of third party content. Access to these sites is provided for your convenience only.

12.2 This Software may contain third party software. By accepting this EULA, You are also accepting the additional terms and conditions with respect to such software, if any, forth herein.

12.3 Portions of this Software may use the SQLite database engine which belongs to the Public Domain. For more information, please visit: http://www.sqlite.org

12.4 This Software may use SQLite ODBC Driver, copyrighted by Christian Werner. For more information, please visit: http://www.ch-werner.de/sqliteodbc/

13. Audit Rights

13.1 CHS audits your use of the Software to verify compliance with this Agreement. The Software is configured to enable periodic HTTP communication with CHS. During this communication, license information is transmitted from the Software to CHS to ensure license compliance. The information transmitted during these periodic updates includes the operating system, license serial number, and other relevant information to verify compliance. If you are unwilling to provide this communication capability, you may opt out of ongoing communication, but you will no longer receive Software updates and search engine configuration updates. If the usage of the Software is considered to be out of compliance with this Agreement, the Software may, without notice, cease to function.

13.2 During the audit process, CHS has the ability to personally identify the individual that registered with CHS to acquire the Software license (“Registrant”) through the identification number assigned to your account at the time of registration, by using the personal information the Registrant provided to CHS during the registration process. Such personal information will only be used by CHS in connection with such audit process.

14. Severability

14.1 If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this Agreement shall not be affected.

15. Governing Law

15.1 This Agreement is to be governed by and construed in accordance with the laws and jurisdiction of the defending party. Service of process upon either party shall be valid if served by registered or certified mail, return receipt requested and to the most current address provided by such party. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

16. Termination

16.1 Your license to use the Software continues until terminated. This license will terminate automatically if you fail to comply with any term hereof. No notice shall be required from CHS to effect such termination. You may also terminate this Agreement at any time by notifying CHS in writing of termination. On termination, you must destroy all copies of the Software. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement.

17. Assignment

17.1 Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by you, whether voluntary or by operation of law. Any such attempted assignment shall be void and of no effect without the prior written consent of CHS.

18. Entire Agreement

18.1 This Agreement contains the entire agreement between CHS and You related to the software and supersedes all prior agreements and understandings, whether oral or written. It may be amended only by a writing executed by both parties.