This License Agreement ("Agreement") is between you (both the individual installing the Program {the Schluter House Flash Program from the CD or by downloading the content that is hereinafter referred to as the “Program”} and any single legal entity for which the individual is acting) ("You" or "Your") and Schluter Systems L.P. ("Schluter").

 

NOTICE TO USER: BY INSTALLING THIS PROGRAM YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT PLEASE READ THEM CAREFULLY.

 

THIS LICENSE AGREEMENT ACCOMPANIES THE SCHLUTER HOUSE FLASH PROGRAM AND THE RELATED EXPANTORY MATERIALS (THE “PROGRAM”). The Program shall include any modified versions or update of the software made available to you. At the end you will be asked to accept this agreement and continue to install the program. TAKING ANY STEP TO SET UP AND/ OR INSTALL THE PROGRAM MEANS THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT. PERMISSION TO DOWNLOAD AND/OR USE THE PROGRAM IS EXPRESSLY CONDITIONED ON YOUR FOLLOWING THESE TERMS. WRITTEN OR ELECTRONIC APPROVAL IS NOT REQUIRED TO MAKE THIS AGREEMENT VALID AND ENFORCEABLE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE PROGRAM AND MUST STOP INSTALLING IT OR UNINSTALL IT, AS APPLICABLE.

 

Schluter owns all intellectual property in the Program. Schluter permits you to use the Program only in accordance with the terms of this Agreement. Use of some third party materials included in the Program or on the Schluter web site www.schluter.com or through of third party services accessible via the Program may be subject to other terms and conditions typically found in a separate license agreement; Terms of Use provided on a third party web page; a “Read Me” file located near such materials; or, otherwise as provided by section 1.6 hereof.

 

Definitions.

 

"Program" means (a) all of the contents of the files (provided either by electronic download, on physical media or any other method of distribution), disk(s), CD-ROM(s) or other media with which this Agreement is provided, including but not limited to (i) related explanatory written materials or files ("Documentation"); and (ii) fonts; and (b) upgrades, modified versions, updates, additions, and copies of the Program, if any, licensed to you by Schluter (collectively, "Updates") of the House Flash software.

"Use" or "Using" means to access, install, download, copy, or otherwise benefit from using the functionality of the program in accordance with the Documentation.

"Computer" means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.

 

1. PROGRAM LICENSE

 

1.1 Limited License. Schluter grants to you, subject to this Agreement's restrictions, a limited, non-exclusive, non-transferable, royalty-free license (without the right to sublicense):

(a) to install a single copy of the Program for use in viewing the Schluter House, and or for use solely to upgrade the Program. ("Authorized Use"); and

(b) to use the Program in support of Your Authorized Use; and

(c) to make one copy of the Program solely for backup purposes, provided that all titles and trademark, copyright and restricted rights notices are reproduced on the copy

(d) the Program shall be used solely for the sale and marketing of Schluter products and for no other purpose.

Further by your use you acknowledge that all copies of the Program in whatever form provided are the sole property of Schluter, and that you have no right, title or interest in the Program or any copies of the Program, except as expressly provided in these Terms and Conditions.

 

1.2 Restrictions. You will not copy or use the Program or any part thereof except as expressly permitted by this Agreement. You will not transfer, sublicense, rent, lease or lend the Program, or use it for third-party training, commercial time-sharing or service bureau use. You will not Yourself or through any third party modify, reverse engineer, disassemble or decompile the Program, except to the extent expressly permitted by applicable law, and then only after You have notified Schluter in writing of Your intended activities.

 

1.3 Ownership. Schluter Systems, L.P. retains all right, title and interest in and to all patent, copyright, trademark, trade secret and other intellectual property rights in the Program and any derivative works thereof. You do not acquire any other rights, express or implied, beyond the limited license set forth in this Agreement.

 

1.4 No Support. Schluter has no obligation to provide support, maintenance, upgrades, modifications or new releases for the Program under this Agreement.

 

1.5 No Modification. You may not modify, adapt, translate or create derivative works based upon the Program. You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Program except to the extent you may be expressly permitted to decompile under applicable law, it is essential to do so in order to achieve operability of the program with another software program, and you have first requested Schluter to provide the information necessary to achieve such operability and Schluter has not made such information available. Schluter has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any such information supplied by Schluter and any information obtained by you by such permitted decompilation may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Program. Requests for information should be directed to the Schluter Marketing Department.

 

1.6 Notices. You shall not copy the Program except as set forth in this Section 1. Any copy of the Program that you make must contain the same copyright and other proprietary notices that appear on or in the Program.

 

1.7 Third Party Website Access.

The program may allow you to access third party websites ("Third Party Sites"). Your access to and use of any Third Party Sites, including any goods, services or information made available from such sites, is governed by the terms and conditions found at each Third Party Site, if any. Third Party Sites are not owned or operated by Schluter. YOUR USE OF THIRD PARTY SITES IS AT YOUR OWN RISK. SCHLUTER MAKES NO WARRANTIES, CONDITIONS, INDEMNITIES, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, INTEGRATION, ACCURACY, SECURITY, AVAILABILITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE THIRD PARTY SITES.

 

1.8 Intellectual Property Ownership, Copyright Protection. This Program and any authorized copies that you make are the intellectual property of and owned by Schluter Systems L.P. and its suppliers. The structure, organization and code of the Program are the valuable trade secrets and confidential information of Schluter Systems L.P. and its suppliers. The Program is protected by law, including without limitation the copyright laws of the United States. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Program and all rights not expressly granted are reserved by Schluter Systems L. P. and its suppliers.

 

2. A. NO WARRANTY. . The Program is delivered to you "AS IS" and by your use you acknowledge acceptance of it “AS IS”. Further, Schluter and its suppliers DO NOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE PROGRAM, SCHLUTER MAKES NO WARRANTIES OR REPRESENTATIONS, OR TERMS AND CONDITIONS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION. The provisions of Section 2 A and Section 2 B shall survive the termination of this Agreement, howsoever caused, but this shall not imply or create any continued right to Use the Program after termination of this Agreement.

 

2.B. LIMITATION OF LIABILITY. IN NO EVENT WILL Schluter OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A Schluter REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. SCHLUTER’S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE PROGRAM, IF ANY. Nothing contained in this Agreement limits Schluter’s liability to you in the event of death or personal injury resulting from Schluter’s negligence or for the tort of deceit (fraud). Schluter is acting on behalf of its suppliers for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose. For further information, please see the jurisdiction specific information at the end of this Agreement, if any, or contact Schluter’s Marketing Department.

 

3. DAMAGES AND REMEDIES FOR BREACH

You agree that any breach of this Agreement's restrictions would cause Schluter irreparable harm for which money damages alone would be inadequate. In addition to damages and any other remedies to which Schluter may be entitled, You agree that Schluter may seek injunctive relief to prevent the actual, threatened or continued breach of this Agreement.

 

4. TERMINATION

This Agreement is effective until terminated. Schluter may terminate this Agreement at any time. If this Agreement is terminated, You will stop using the Program, permanently delete it from the equipment where it resides, and destroy all copies of the Program and any related documentation in Your possession, confirming to Schluter in writing that You have done so. Sections 1.2, 1.3, 1.4, 3, 4, and 5 will continue in effect after this Agreement's termination.

 

5. GENERAL TERMS

 

5.1 Law. This Agreement and all matters arising out of it are governed by the laws of the New York State, USA and the parties irrevocably consent to that jurisdiction and venue in the courts of New York. Application of the United Nations Convention on Contracts for the International Sales of Goods is expressly excluded.

 

5.2 Limitation of Liability. In no event will Schluter or its subsidiaries be liable in connection with this Agreement or its subject matter, under any theory of liability, for any indirect, incidental, special, consequential or punitive damages, or damages for lost profits, revenue, business, savings, data, use, or cost of substitute procurement, even if advised of the possibility of such damages or if such damages are foreseeable. In no event will Schluter's liability for all damages exceed the amounts actually paid by You to Schluter for the Program. The parties acknowledge that the liability limits and risk allocation in this Agreement are reflected in the Program price and are essential elements of the bargain between the parties, without which Schluter would not have provided the Program or entered into this Agreement.

 

5.3 Severability and Waiver. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. This Agreement may only be modified by a writing signed by an authorized representative of Schluter. Updates may be licensed to you by Schluter with additional or different terms. This is the entire agreement between Schluter and You relating to the Program and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Program. The waiver by either party of any default or breach of this Agreement will not waive any other or subsequent default or breach.

 

5.4 No Assignment. You may not assign, sell, transfer, delegate or otherwise dispose of this Agreement or any rights or obligations under it, whether voluntarily or involuntarily, by operation of law or otherwise, without Schluter's prior written consent. Any purported assignment, transfer or delegation by You will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

 

5.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements or representations, whether written or oral, concerning its subject matter. This Agreement may not be modified or amended without Schluter's prior and express written consent, and no other act, document, usage or custom will be deemed to amend or modify this Agreement.