End User License Agreement (EULA) rev. 10/15/16
Notice: This Product (one of the following computer programs: EES, F-Chart, PV F-Chart, FEHT or the EES/REFPROP interface together with its accompanying documentation) is the property of F-Chart Software, LLC ("F-Chart"). There are two main categories of licenses: Academic and non-Academic. You may accept the appropriate license by clicking the I Agree button when the setup program is run. You will not be able to install the program without accepting the license agreement.
FOR INDIVIDUALS USING AN ACADEMIC LICENSE
If you obtained this Product from an educational degree-granting institution ("Institution") in which you are a direct and personal participant, either as student or instructor, you may only use the Product for educational or training purposes that are required by your Institution to obtain a degree. You may not use the Product for any commercial, business or non-educational purpose of any kind. Furthermore, an Academic license may not be used for research that is not part of a student's graduation requirement. You may not provide copies of this Product to any other person whether or not they are a student or instructor in any Institution. You are expressly prohibited from placing this Product on any web site that provides access to persons other than you. The Institution that purchased this license is referred to the following section. All rights not specifically granted to you herein are retained by F-Chart Software, LLC. Students using an Academic License do not need to review the remaining text.
FOR ADMINISTRATORS OF AN ACADEMIC LICENSEThe terms in this section are applicable to you only if you are the administrator, faculty member or IT support person for an Academic license. An Academic License is licensed for use in one academic department in a degree-granting institution directly from F-Chart Software. Subject to the terms and conditions of this License, F-Chart Software grants to you a nonexclusive, nontransferable and limited license to install the Product on machines accessible to all students and faculty in a single department. If two departments within a college (for example Mechanical and Chemical Engineering) both obtain a produce license, then F-Chart Software will provide a license for the whole College of Engineering or equivalent. Each student and faculty member within the license holding unit (department or college) can have a copy of the product on their personal machine. This license is for instructional use only. If the product is used for sponsored research that is not a part of a student's graduation requirement then a non-academic license should be obtained. The Product expires each September 1. However, in June or July of each year F-Chart Software will notify one registered contact person by email with information on how to update for the following year (at no cost). The setup program and license files (SETUP_EES.exe and EES.DFT for the EES program) must not be made available to anyone outside of your license holding unit (department or college). If you place these files on a server so that access is provided to your students and faculty, you must ensure that persons outside of your department cannot access the server. Failure to meet this requirement of our license agreement will result in immediate cancellation of your EES license. A fee of $US100 will be charged to reinstate the program. The license will be permanently terminated if there are multiple violations of this policy.
FOR NON-ACADEMIC LICENSES
The Product is made available to you, the original purchaser, subject to the following license agreement ("License"). Please read this license carefully before installing or using the Product. A copy of this License is available for your future reference at fchart.com.
If you do not accept this license, then you may not install or use the product. In that case you may, within ten (10) days after you first received the product, request a full refund of the purchase price by notifying F-Chart Software of your decision. Any use by you of this product also constitutes your acceptance of these terms.
F-Chart Software is only willing to grant you this License if you obtained the Product from F-Chart Software. If you obtained the Product from any other source you may not install or use the Product.
OWNERSHIP. The Product is proprietary to F-Chart Software. The Product is licensed, not sold, to you notwithstanding any reference herein to "purchases". You acknowledge and agree that: (a) the Product is protected under U.S. copyright and other laws; (b) F-Chart Software retains all copyrights and other intellectual property rights in the Product; (c) there are no implied licenses under this License, and any rights not expressly granted to you hereunder are reserved by F-Chart Software; (d) you acquire no ownership or other interest (other than your license rights) in or to the Product; and (e) F-Chart Software owns all copies of the Product, however made. You agree that you will not, at any time, contest anywhere in the world F-Chart Software's ownership of the Product, nor will you challenge the validity of F-Chart Software's rights in the Product. You have no rights hereunder to use any trademark or service mark belonging to F-Chart Software for any commercial purpose.
GRANT OF LICENSE AND SCOPE OF USE. You will have a license to one and only one of the Products for each license that you purchase. For each license that you acquire to use the Product (except for the EES_REFPROP Interface), you will be provided with a .dft file (EES.dft, FCHART.dft, PVFCHART.dft or FEHT.dft). This file will contain information specific to the Product licensed that you have acquired, such as company or institution name, the name of the designated user or the number of unnamed users. In order to activate and use the Product as set forth in this License, you must copy the .dft file into the directory in which the product is installed. The type of license you may acquire can be: a named single-user License, an unnamed multi-user License or an academic License. The EES_REFPROP interface extends the capabilities of the EES program and is licensed for use with a specific EES license. All rights not specifically granted to you herein are retained by F-Chart Software.
2.1 Named User License. The terms of this Section 2.1 are applicable to you only if you have acquired a Named User License, as defined below, for EES, FEHT, F-Chart or PV F-Chart. Subject to the terms and conditions of this License, F-Chart Software grants to you, an individual, ("Named User") a personal, nonexclusive, nontransferable and limited license to use the Product. The Product may be used exclusively by the specifically designated Named User, subject to all the terms and conditions of this License. You may install the Product on a reasonable number of machines provided that the Named User is the only individual permitted to use the Product. Subject to the other terms and conditions of this License, you may make a reasonable number of copies of the Product to backup devices solely to replace the original copy provided to you if the original copy is damaged or destroyed. You may change the Named User to another Named User by requesting a new key file from F-Chart Software provided that your Instant Update and Technical Service is active.
2.2 Multi-User License. The terms of this Section 2.2 are applicable to you only if you or your company has purchased a Multi-User License for N specified individuals directly from F-Chart Software and you are the registered administrator of this license. Subject to the terms and conditions of this License, F-Chart Software grants to you a nonexclusive, nontransferable and limited license for N specific users (not N concurrent users from a larger pool). If an individual user has both a laptop and a desktop computer, then installing on both machines counts as one installation. The N users must be members of one department in your company and located at one specific facility. Subject to the other terms and conditions of this License, you may make a reasonable number of copies of the Product to backup devices solely to replace the original copy provided to you if the original copy is damaged or destroyed.
- RESTRICTIONS. You may not: (a) modify, adapt, alter, translate, or create derivative works of the Product or merge the Product with other software other than as approved of in writing by F-Chart Software; (b) lease, rent or loan the Product to any third party; (c) sublicense, distribute or otherwise transfer the Product to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Product; (e) remove, alter, or obscure any confidentiality or proprietary notices (including copyright and trademark notices) of F-Chart Software or its suppliers on the Product; (f) allow third parties to access or use the Product such as in a time-sharing arrangement or operate the Product as part of a service bureau for the use or benefit of third parties or (g) reproduce or use the Product except as expressly authorized under Section 2. Further, the Professional version of EES is capable of creating special purpose programs called Distributable programs. Distributable programs may be freely given to anyone, but they may not be sold. The rights granted under this License apply only to this Product. For multi-user licenses, you may not permit your End Users to conduct the restricted activities limited by items (a) through (g) above.
LIMITED WARRANTY AND DISCLAIMER. Except for this express limited warranty, the product is provided "as is" and without warranty of any kind. F-Chart Software hereby excludes and disclaims all implied or statutory warranties, including any warranties of fitness for a particular purpose, quality, non-infringement, results, efforts or quiet enjoyment. There is no warranty the product will be error free or will function without interruption. You assume the entire risk for the results obtained using the product. To the extent that F-Chart Software may not disclaim any warranty as a matter of applicable law, the scope and duration of such warranty will be the minimum permitted under such law. Some states do not allow the exclusion of implied warranties so the above exclusion may not apply to you. This limited warranty gives you specific legal rights, and you may also have other legal rights, which vary from state to state.
SERVICES; UPDATES; PRODUCT CHANGES. F-Chart Software is not required under this License to provide any installation, training or other services to you. Such services, if available, must be purchased separately. If, pursuant to a separate support agreement or otherwise, F-Chart Software provides you with a new release, error correction, update, upgrade or other modification to the Product, such modification will be deemed part of the Product, and subject to the terms of this License. F-Chart Software reserves the right at any time not to release or to discontinue release of any Product and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of the Product.
REGISTRATION. The Product must be registered with F-Chart Software as a condition to your rights to use the Product. The necessary product registration information will be obtained during the ordering process.
LIMITATION OF LIABILITY. Except for the obligations set forth in section 8, in no event will F-Chart Software be liable to any party for any indirect, incidental, consequential, exemplary, special or punitive damages, including any loss of profit, revenue, business opportunity or data, arising from or relating to this license or the produce, whether in contract, in tort or otherwise, even if F-Chart Software knew, should have known or has been advised of the possibility of such damages. Except for the obligations set forth in section 8, F-Chart Software’s total cumulative liability to the named user or registered administrator (“the user”) arising from or related to the license or the product whether in contract, in tort, or otherwise will not exceed the fees actually paid to F-Chart Software under this license. This section will apply even if an exclusive remedy hereunder has failed of its essential purpose. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may then not apply to the user.
THIRD PARTY CLAIMS. F-Chart Software will defend and settle any suit brought against the named user or registered administrator (“the user”) by a third party (not your affiliate) based on a claim that the Product infringes upon any U.S. copyright. F-Chart Software will pay those costs and damages finally awarded against the user in such suit that are specifically attributable to such claims or those amounts payable by the user under a settlement of such suit. The foregoing obligations are conditioned on the user: (a) notifying F-Chart Software promptly in writing of such action; (b) giving F-Chart Software sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at F-Chart Software's request and expense, assisting in such defense. If the Product becomes, or in F-Chart Software's opinion is likely to become, the subject of an infringement claim that F-Chart Software is required to defend, then F-Chart Software may (at its option and expense) either: (a) procure for the user the right to continue using the Product; (b) replace or modify the Product so that it becomes non-infringing; or (c) terminate this License and the user’s rights hereunder to use the Product and refund a pro rata portion of any license fee paid under this License, based on a three (3) year product life. Notwithstanding the foregoing, F-Chart Software will have no obligation under this section or otherwise with respect to any infringement claim based upon: (a) any use of the Product not in accordance with this License or the products accompanying documentation; (b) any use of the Product in combination with other products, equipment, software, or data not provided by F-Chart Software; (c) any use of any version of the Product other than the most current version made available to the user; or (d) any modification of the Product by any person other than F-Chart Software. This section states F-Chart Software's entire liability and the user’s sole and exclusive remedy for third-party claims relating to the Product.
TERM AND TERMINATION.
9.1 Term. The term of this License will begin as of the date that you receive the Product and will remain in effect unless terminated under this section.
Academic licenses terminate on September 1 of each year but a new version will be provided in June or July to the registered contact person free of charge.
Named and multi-user (non-academic) EES licenses will remain active for 5 years. The term of an EES license will be extended with the renewal of Instant Update and Technical Service (IUTS). A license will be inactivated if 4 or more years have passed since the IUTS expiration date, but will be restored with renewal of IUTS.
9.2 Termination for Cause. F-Chart Software may terminate this License if you breach your obligations. Fees paid for the license will not be refunded.
10.1 Audit. F-Chart Software reserves the right to monitor use of the software for the sole purpose of ensuring that the number of users is in agreement with the terms of the license.
10.2 Canadian Transactions. If you are subject to Canadian law, you agree to the following:
The parties hereto have expressly required that the present License and its Exhibits be drawn up in the English language. / Les parties aux présentes, ont expressément exigé que la présente Convention et ses Annexes soient rédigées en langue anglaise.
10.3 Hazardous Uses. The Product is not intended for use, and you may not use or allow others to use the Product, in connection with any application requiring fail-safe performance such as the operation of nuclear power facilities, air traffic control or navigation systems, weapons control systems, life support systems, or any other system whose failure could lead to injury, death, environmental damage or mass destruction. You agree that F-Chart Software will have no liability of any nature, and you are solely responsible, for any expense, loss, injury or damage incurred as a result of such use of the Product.
10.4 Governing Law. This License will be governed by and construed in accordance with the laws of the United States and the State of Wisconsin, without giving effect to any conflicts or choice of laws principles that would require the application of the laws of a different jurisdiction. The parties expressly exclude the application of the 1980 United Nations Convention on the International Sale of Goods (if applicable).
10.5 Entire License; Severability. This License constitutes the entire, final and exclusive agreement between you and F-Chart Software regarding the specific license transaction described herein. If any provision of this License is held to be illegal, invalid or unenforceable for any reason, then such provision will be enforced to the maximum extent permissible and the remainder of the provisions of this License will remain in full force and effect.
10.6 Assignment. You may not transfer the Software media, assign this License or assign any of your rights or delegate any of your obligations under this License, by operation of law or otherwise (including by merger, sale of assets or consolidation), without F-Chart Software's prior written consent. Any attempted assignment in violation of this Section 10.6 will be void.
10.7 Export Control. You may not directly or indirectly transfer the Product, including its documentation, to any country if such transfer would be prohibited by applicable law, including the U.S. Export Administration Act and the regulations issued there under. You agree to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country. You will be solely responsible for identifying and complying with all laws of any jurisdiction outside of the United States regarding the import, export or use of Products and technical data supplied by F-Chart Software. You will obtain at your own expense all licenses, permits or approvals required by any government to use the Product.
10.8 U.S. Government Rights. The Product is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Product with only those rights set forth in this License.
10.9 Waiver and Modifications. All waivers must be in writing. Any waiver or failure to enforce a provision of this License on one occasion shall not be deemed a waiver of any other provision or such provision on any other occasion. This License may only be amended by a written document signed by both parties.
If you would like to alter the type or usage parameters of any license you have acquired from F-Chart Software, you must first contact F-Chart Software to obtain written approval and pricing for any such modifications to your license.
If you have any questions about this License, please contact F-Chart Software. IF YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE, please indicate your acceptance by selecting the I Agree button in the Setup program. This will be the legal equivalent of your signature on a written contract, and equally binding. You must agree to these terms and conditions in order to download and/or install the Software. If you do not agree with these terms and conditions, you should not be able to install the program, as F-Chart Software is unwilling to license the Software to you in such case. You may contact F-Chart Software for a full refund.
F-Chart Software LLC
PO Box 44042
Madison, WI 53744