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UPGRADE LICENSE AGREEMENT

 

UPGRADE LICENSE AGREEMENT

NOTICE TO USER:
THIS IS A CONTRACT. AT THE END, YOU WILL BE ASKED TO ACCEPT THIS AGREEMENT AND CONTINUE WITH ACTIVATION OF THE LICENSE KEY, IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, TO DECLINE THIS AGREEMENT, IN WHICH CASE YOU WILL NOT BE ABLE TO USE, INSTALL OR OPERATE THE PRODUCT, AS DEFINED BELOW. BY CONTINUING ACTIVATION YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.

This Upgrade License Agreement (the “Upgrade Agreement”) is a legal agreement between you (either an individual or an entity), the licensee, and Famatech International Corp. (collectively, the “Company”), regarding the upgrade for any version of the Company’s Remote Administrator software, including without limitation versions 1.XX; 2.XX or any language versions provided to you by the Company with the exception of any custom version of the Original Software obtained or purchased through Company distributors (e.g. Sunbelt Software) (the “Original Software”) and related services  (together with Original Software, the “Original Product”) to the software and services titled Radmin 3.0 Server (the “Product”) as described in applicable End User License Agreement related to thereto (the “EULA”) that you about to download or otherwise obtained through this site/ or other media . For purposes hereof “Operating” shall mean accessing, downloading, storing, loading, installing, executing, displaying, copying the Product into the memory of a computer or otherwise benefiting from using the functionality of the Product in accordance with the Documentation.  For purposes hereof, “License Key” shall mean a file or a unique sequence of digit and/or symbols provided to you by the Licensor confirming the purchase of the license from the Licensor, which may carry the information about the license to the Product and/or the Client Device on which the Product is being installed, i.e. its type, the user name and the number of licenses purchased, and enabling the full functionality of the Product in accordance with the license granted under the EULA.  For purposes hereof, “you” means the individual person installing or using the Product on his or her own behalf and having a valid license to the Original Product; or, if the Product is being downloaded or installed on behalf of an organization, such as an employer, “you” means the organization for which the Product is downloaded or installed and it is represented hereby that such organization has authorized the person accepting this agreement to do so on its behalf and it holds a valid license to the Original Product.  For purposes hereof the term “organization,” without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.

By accessing, downloading, storing, loading, installing, executing, displaying, copying the Product into the memory of a computer, which is currently using any version of the Original Product (“Upgrading”), you agree to be bound by the terms of this Upgrade Agreement and the EULA, as may be amended from time to time, provided that in case of a conflict between the terms of the EULA and this Upgrade Agreement, the terms of the EULA shall prevail. You may Upgrade your Original Product to this Product as follows:

   

(1) if you obtained Original Product prior to March 31, 2006, you may upgrade the Original Product to the Product, provided that you (i) enter into this Upgrade Agreement and into related EULA for the Product; (ii) hereby agree that your prior agreement entered into regarding the Original Product is terminated, except for the provisions relating to Confidential Information and Intellectual Property ownership by licensor under the respective end user license agreement, which shall survive such termination; and (iii) you hereby acknowledge and agree that Company has no obligation to continue to provide you with any successor upgrades, revisions, patches, enhancements, fixes modifications, copies, additions or maintenance releases of the Software and any such successor upgrades, revisions, patches, enhancements, fixes modifications, copies, additions or maintenance releases of the Software may be provided by the Company, at its option and discretion, free of charge or for a fee;

   

(2) if you obtained Original Product after March 31, 2006 you may upgrade the Original Product to the Product, provided that you (i) pay appropriate license fee; (ii) enter into this Upgrade Agreement; (iii) you hereby acknowledge and agree that Company has no obligation to continue to provide you with any successor upgrades, revisions, patches, enhancements, fixes modifications, copies, additions or maintenance releases of the Software and any such successor upgrades, revisions, patches, enhancements, fixes modifications, copies, additions or maintenance releases of the Software may be provided by the Company, at its option and discretion, free of charge or for a fee.

If you do not agree to the terms and conditions of this Upgrade Agreement, the Company is unwilling to Upgrade your Original Product to the Product.  In such event, you may continue using Original Product but you will not be able to avail yourself of the Upgrade offer made by the Licensor and may not be able to Operate the Product under the terms hereof.

BEFORE YOU PUT A CHECKMARK by the statement “I agree with the above terms and conditions” and CLICK ON THE “NEXT” BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS UPGRADE AGREEMENT. YOUR CLICK OF THE “I AGREE” CHECKBOX IS A SYMBOL OF YOUR SIGNATURE AND BY CLICKING ON THE “I AGREE” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS UPGRADE AGREEMENT AND AGREE THAT THIS UPGRADE AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS UPGRADE AGREEMENT, CLICK THE “EXIT” BUTTON AND THE PRODUCT WILL NOT REPLACE AND UPGRADE THE ORIGINAL SOFTWARE ON YOUR COMPUTER. You will not be able to Upgrade to the Product unless or until you accept the terms of this Upgrade Agreement.  You may also receive a copy of this Upgrade Agreement by contacting the Company at: http://www.famatech.com/support/feedback.php.

1. Grant of License.
  1.1. Upgrade License. If you currently using Licensor’s Original Product and possess a valid full license to the Original Product, the Company will grant you a non-exclusive and non-transferable license to use this Product on a specified number of computers, workstations, personal digital assistants, ‘smart phones,’ mobile phones, hand-held devices, or other electronic devices for which the software was designed (each a “Client Device”) pursuant to the terms and conditions of this Upgrade Agreement as follows:
    a). Single License. If the Original Product was licensed to you with “single license” terms specified in the applicable invoicing or packaging for the Original Product, you are hereby granted two (2) Licenses for the Product.
    b). Site License.  If the Original Product was licensed to you with “site license” terms specified in the applicable invoicing or packaging for the Original Product, you are hereby granted up to 250 Licenses for the Product.
    c). Company License.  If the Original Product was licensed to you with “company license” terms specified in the applicable invoicing or packaging for the Original Product, you are hereby granted up to 1000 Licenses for the Product.
    d). If the Original Product was licensed to you under certain terms with a right to use the Original Product on a specific number of Client Devices (e.g. 500 Client Devices for “Site License”),  you are hereby granted a right to use and operate the Product on the same number of Client Devices as the Original Product.
    e). Help Desk License. If the Original Product was licensed to you with help desk license terms specified in the applicable invoicing or packaging for the Original Product, you are hereby granted one (1) Help Desk License for the Product.
  1.2. Components. Depending on a license you have chosen, the Product may consist  of several components, including without limitation Radmin Viewer 3.0 and Radmin Server 3.0 (each, the “Component,” and together, “Components”). Notwithstanding anything to the contrary herein, components that you receive as part of the Product may have its own license agreements relating to the Component or the Product as a whole (each, a “Component Agreement”).  In the event of inconsistencies between this Upgrade Agreement and any Component Agreement, the terms of the Component Agreement shall control except for Confidential Information and Intellectual Property provisions.
  1.3. No Obligation to Upgrade. You are not obligated to upgrade for any reason, and should carefully consider the advantages of upgrading before doing so. If you choose not to upgrade, you may still use your current version of the software and you will still be entitled to any Updates that may be released for your current version according to your original end user license agreement.
  1.4. Upgrade procedure. You hereby agree that in order to Upgrade your licenses for Original Product to the Product according to Section 1.1 of this Agreement, you will be asked to follow certain upgrade and activation procedures that may includes without limitations, the replacement of your current License Key as defined by applicable end user license agreement for the Original Product, and you hereby agree to comply with any such activation procedures.
  1.5. Additional Protection Measures.  Solely for the purpose of preventing unlicensed use of the Product, the Software may collect certain non-personal information relating to the hardware of your Client Device and/or install on your Client Device certain technological measures that are designed to prevent unlicensed use, and the Company may use this technology to confirm that you have a licensed copy of the Product.  Such installation or collection of information or updates of these technological measures may occur through and/or during the installation or activation of the Product or Updates.  The Product will not install or may fail to Operate if installed contrary to the rights granted under the License or if attempted to be installed or Operated on unlicensed copies of the Product.  If you are not using a licensed copy of the Product, you are not allowed to install the Updates. Please note that you may not, subsequent to the original installation of the Product on the original Client Device, install the Product on any other Client Device for any reason without purchasing additional licenses for the Product. The Company will not collect any personally identifiable information from your computer during this process.
2. Miscellaneous.
  2.1. Governing Law; Jurisdiction and Venue. This Upgrade Agreement shall be governed by and construed and enforced in accordance with the laws of the British Virgin Islands without reference to conflicts of law rules and principles.  This Upgrade Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. You agree that this Upgrade Agreement is to be performed in the British Virgin Islands and that any action, dispute, controversy, or claim that may be instituted based on this Upgrade Agreement, or arising out of or related to this Upgrade Agreement or any alleged breach thereof, shall be prosecuted exclusively in the courts in the British Virgin Islands, and you, to the extent permitted by applicable law, hereby waive the right to change venue to any other state, county, district or jurisdiction; provided, however, that the Company as claimant shall be entitled to initiate proceedings in any court of competent jurisdiction.
  2.2. Period for Bringing Actions.  No action, regardless of form, arising out of the transactions under this Upgrade Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
 

2.3.

Entire Agreement; Severability; No Waiver.  This Upgrade Agreement is the entire agreement between you and Company and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the Product or to subject matter of this Upgrade Agreement provided that the Company and you may limit, modify or changes the applicability of the terms of this Upgrade Agreement by a prior, contemporaneous or subsequent written agreement by referencing this Section 2.3 of the Upgrade Agreement and expressly providing for such limitation, modification or changes.  You acknowledge that you have read this Upgrade Agreement, understand it and agree to be bound by its terms.  If any provision of this Upgrade Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Upgrade Agreement will not fail on account thereof and the balance of the Upgrade Agreement will continue in full force and effect to the fullest extent permitted by law.  No waiver of any breach of any provisions of this Upgrade Agreement will constitute a waiver of any prior, concurrent or subsequent breach and no waiver will be effective unless made in writing.
  2.4. Contact Information.  Should you have any questions concerning this Upgrade Agreement, or if you desire to contact the Company for any reason, please contact our Customer Department at http://www.famatech.com/support/feedback.php.

Copyright © 1999-2007 Famatech International Corp. and its licensors; All rights reserved. The Product, including the Software and any accompanying Documentation, are copyrighted and protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.

Famatech Corporation Copyright © 1999-2016 Famatech. All rights reserved.