End User License Agreement
Last modified 17 August 2018
Please read this document carefully before downloading or installing the Microtechnics software products, including but not limited to all versions of LucisArt, Lucis, Lucis Pro, Lucis Pro SA, associated media, printed materials, online or electronic documentation (collectively "Software"). This document is a contract (this "Agreement"). By downloading, installing or copying the Software, you are accepting all of the terms and conditions of this Agreement. This Agreement licenses certain Microtechnics ("MICROTECHNICS") Software to you. This Agreement contains warranty and liability disclaimers and limits any damages you can recover from MICROTECHNICS.
If you do not agree to the terms and conditions of this Agreement and would like to obtain a refund of the amounts paid for the Software, you must immediately contact the company who sold you the Software license, and comply with its standard return policies and procedures for such Software. Please note that most companies require proof of purchase and the return of the Software within thirty (30) days from the date of purchase, however, return policies and procedures may vary between companies and MICROTECHNICS shall not, in any event, be responsible for any return policies and procedures, except for MICROTECHNICS’s own return policies and procedures for Software obtained directly from MICROTECHNICS.
MICROTECHNICS hereby grants you a nonexclusive license to use the Software, but only on the following terms:
The following capitalized terms shall have the meanings specified in this Section 1. Other terms are defined in the text of this Agreement; and, throughout this Agreement, those terms shall have the meanings respectively ascribed to them.
1.1 “Authorized Computers" means the stand-alone computers or computers in your Internal Network each designated to run the Software as a single, stand-alone computer. You may not install the Software on a computer for access by another person on another computer, such as a network server.
1.2 “Authorized Users" means you, or your employee or an individual independent contractor authorized by you to use the Software pursuant to the terms of this Agreement. An Authorized User means an individual person, and is not a corporation, company, partnership or association or other entity or organization.
1.3 “Internal Network” means a private network accessible only by employees and contractors of a specific corporation or business entity. Internal Network does not include any portions of the Internet or other parts of the network accessible by the public, such as membership groups, associations and similar organizations.
1.4 “Permitted Number” means any of your computers.
1.5 “Serial Number" means the character scheme provided by MICROTECHNICS and identified as the Serial Number for the Software. The Serial Number is contained in your Software package. Software purchased directly from MICROTECHNICS will automatically have its Serial Number registered with MICROTECHNICS; otherwise you will need to register your Serial Number for your copy of the Software with MICROTECHNICS.
2. Software License
2.1 Subject to the terms set forth in this Agreement, MICROTECHNICS grants to you a non-exclusive, non-transferable license to use the Software in executable form only on the Permitted Number of Authorized Computers and to copy and use the Software's accompanying documentation in conjunction with your use of the Software.
2.2 This Agreement DOES NOT include a Volume License of the Software. A separate Volume License (with additional fees) is required. Please contact MICROTECHNICS for more information.
2.3 Demonstration versions of the Software may only be used for 30 days from the time of installation. After that time the demonstration version of the Software must be deleted and uninstalled from all computers. It may not be reinstalled unless given specific permission by MICROTECHNICS in writing.
2.4 The primary user of the Authorized Computer on which the Software is installed may install a second copy of the Software for his or her exclusive use either on a portable computer or a computer located at his or her home provided that the Software on the portable or home computer is not used at the same time as the Software on the authorized Computer.
2.5 You may reproduce and use MICROTECHNICS's Trademarks in all copies of the Software and its documentation made in accordance with this Agreement.
2.6 All Software, which includes any subsequent updates, upgrades, bug fixes, patches and any part thereof, is provided to you under a nonexclusive and nontransferable license (except for Software transfers expressly authorized by MICROTECHNICS in writing). All right, title to and ownership of all applicable intellectual property rights in the Software, including but not limited to patents, copyrights and trade secrets remain with MICROTECHNICS and its licensors. The above rights extend to any accompanying printed materials and online or electronic documentation and any authorized copies of the above materials. Software is unpublished software, trade secret and confidential or proprietary information of MICROTECHNICS or its licensors and is developed at private expense. The Software is provided with "Restricted Rights" and any use, duplication or disclosure by the US Government is subject to the Restricted Rights and limitations set forth in FAR 52.227-19 and DFAR 252.227-7013 et seq. or its successor.
2.7 You shall ensure that your Authorized Users comply with the terms of this Agreement applicable to their use of the Software.
2.8 You cannot disclose to any third party nor allow any third party to have access to or use of your assigned Serial Number.
2.9 You may reproduce the Software only as reasonably necessary for your own bona fide non-production testing, backup or archival purposes.
2.10 You may not remove, obscure or alter any notice of copyright, patent, trade secret, trademark or other proprietary right or disclaimer appearing in or on any Software or accompanying materials.
3. Copyright, Title & Ownership
The Software is owned by MICROTECHNICS. The Software and its structure, organization and code are the valuable trade secrets of MICROTECHNICS. All intellectual property rights (including without limitation copyrights, trade secrets and trademarks) evidenced by, embodied in, or attached, connected or related to the Software (including without limitation the Software code) belong to MICROTECHNICS. The Software is also protected by United States Copyright Law and International Treaty provisions. You must treat the Software just as you would any other copyrighted material, such as a book. You may not copy the Software except as provided in Section 2. You may not modify, sell, rent, transfer, resell for profit, distribute or create derivative works based upon, the Software, or any part thereof without written permission from MICROTECHNICS.
4. Prohibited Uses
Except as specifically permitted in Section 2 above, you agree not to (i) use, modify, merge or sub- license the Software or any of MICROTECHNICS’s Products; (ii) sell, license (or sub- license), lease, assign, transfer, pledge, or share your rights under this Agreement to anyone else; (iii) modify, adapt, transfer, disassemble, de-compile, reverse engineer, revise or enhance the Software or otherwise reduce the Software to human-perceivable form or attempt to discover the Software’s source code; (iv) place the Software onto a server so that it is accessible via a public network; (v) use any back-up or archival copies of the Software (or allow someone else to use such copies) for any purpose other than to replace an original copy if it is destroyed or becomes defective; (vi) attempt to increase the functionality of the Software in any way; or (vii) export or re-export the Software, directly or indirectly, into any country prohibited by the United States Export Administration Act. If you are a member of the European Union, this Agreement does not affect your rights under any legislation implementing the EC Council Directive on the Legal Protection of Computer Programs. If you seek any information within the meaning of the Directive you should contact MICROTECHNICS.
5. Right to Restricted Use
MICROTECHNICS reserves the right, with or without notice, to restrict your use or access to the Software, in whole or in part, if MICROTECHNICS reasonably determines that there is an unauthorized use of your assigned Serial Number or access to the Software by persons or entities who are not Authorized Users or Authorized Concurrent Users. Such restrictions by MICROTECHNICS shall not be a breach of this Agreement by MICROTECHNICS, and shall be in addition to any other rights and remedies MICROTECHNICS has under law and equity.
6. Limited Warranty
MICROTECHNICS warrants that for a period of 90 days from the date on which you download or install the Software, whichever is earlier (the "Warranty Period"), the Software, if operated as directed, will conform substantially to the then current published functional specifications, provided that it is used on the computer hardware and with the operating system for which it was designed. NO DEALER, DISTRIBUTOR, RESELLER, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS OR ADDITIONS TO THIS WARRANTY. READ THE WARRANTY LIMITATIONS AND DISCLAIMERS IN SECTION 7 BELOW.
7. Warranty Limitations and Disclaimers
READ THE FOLLOWING DISCLAIMERS CAREFULLY.
7.1 MICROTECHNICS DOES NOT WARRANT THAT THE SOFTWARE OR ANY OF ITS PRODUCTS WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.
7.2 TO THE EXTENT ALLOWED BY LAW, MICROTECHNICS EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES NOT STATED IN THIS AGREEMENT AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU ARE SOLELY RESPONSIBLE FOR THE SELECTION, USE, EFFICIENCY AND SUITABILITY OF THE SOFTWARE ON YOUR SYSTEM, AND MICROTECHNICS SHALL HAVE NO LIABILITY THERE FOR AT ALL. MICROTECHNICS does not warrant that the functionality maintained in the Software will meet all of your requirements or that the Software will operate in combinations you might select.
7.3 The limited warranty shall not apply if the Software is used on or in conjunction with any hardware or programs other than the unmodified version of hardware and program with which the Software was designed to be used as described in the Software documentation.
7.4 MICROTECHNICS DOES NOT MAKE ANY WARRANTIES OF ANY KIND THAT THE SYSTEM OR COMPONENTS DO NOT OR WILL NOT INFRINGE ANY COPYRIGHT, PATENT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY IN ANY COUNTRY.
7.5 To the extent permissible, any implied warranties are limited to 90 days. This warranty gives you specific legal rights. You may have other rights that vary from state to state or jurisdictions to jurisdiction.
7.6 Some states or jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you.
7.7 All warranties are null and void if the Software is (i) altered; (ii) subjected to out-of-specification uses, viruses or accidents; (iii) misused; (iv) damaged by your or any other person’s negligence, or your or any other person’s failure to follow instructions or specifications as to proper use, care, maintenance of Software or the media on which it is installed; or (v) damaged by external factors such as fluctuation of electrical power, temperatures above 80 degrees Fahrenheit, fire, flood or failure or your failure to comply with environmental specifications.
7.8 MICROTECHNICS shall have no responsibility for the effect that the installation of the Software may have on any other warranties relating to products to which the Software might be attached. This shall include changes of or to operating systems that the Software was not intended for use thereupon.
8. Limitation of Remedies
8.1 MICROTECHNICS will make reasonable efforts to correct errors reflecting significant deviations from the functional specifications that you report to MICROTECHNICS during the warranty period, but because not all errors in Software can or need be corrected, MICROTECHNICS does not warrant that all Software defects will be corrected. As such, this software cannot be returned for refund.
8.2 You agree to hold MICROTECHNICS harmless from and indemnify MICROTECHNICS against any and all liabilities, claims, costs, losses and expenses (including reasonable attorneys fees), paid or incurred as a result of or arising from your or any other person’s alteration, misuse or modification of the Software or violation of this Agreement.
MICROTECHNICS shall have the right to inspect and audit your records pertaining to the Software to ensure ongoing compliance with this Agreement. MICROTECHNICS or MICROTECHNICS's independent certified public accountant shall conduct such inspection and audit at MICROTECHNICS's expense. Any inspection and audit will be conducted during regular business hours with reasonable notice and will not unreasonably interfere with your normal business activities. Inspections and audits will not occur more frequently than once a year, however, if past inspections and audits reveal major discrepancies, MICROTECHNICS shall have the right at any time to an inspection and audit upon written request. If any inspection and audit reveals any underreported, unpaid or unauthorized use of the Software, then you shall promptly pay to MICROTECHNICS the then current fee representing the underreported, unpaid or unauthorized use of the Software. In addition, you will be responsible for the costs and expenses of the inspection and audit if such inspection and audit reveals that the then current fee representing the underreported, unpaid or unauthorized use of the Software is equal to or greater than 5% of the amounts actually paid by you for such Software.
10. Limitation of Liability and Exclusion of Damages
10.1 IF, NOTWITHSTANDING THE TERMS OF THIS AGREEMENT, MICROTECHNICS IS FOUND LIABLE FOR DAMAGES BASED ON ANY DEFECT OR NONCONFORMITY OF ITS SOFTWARE OR OTHER PRODUCTS, ITS TOTAL LIABILITY FOR EACH DEFECTIVE PRODUCT SHALL NOT EXCEED THE GREATER OF (x) U.S.$200, OR (y) THE PRICE PAID TO MICROTECHNICS FOR SUCH DEFECTIVE PRODUCT. The entire liability of MICROTECHNICS and your exclusive remedy for any defective Software or other Product provided under this Agreement is limited to its return to MICROTECHNICS within ninety (90) days after the earlier of its download or installation for replacement of such software or other product such Software or other Product. THE ENTIRE LIABILITY OF MICROTECHNICS AND YOUR EXCLUSIVE REMEDY FOR DAMAGES FROM ANY CAUSE RELATED TO OR ARISING OUT OF THE SOFTWARE OR OTHER PRODUCT, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT OR IN TORT, NEGLIGENCE OR PRODUCT LIABILITY, WILL NOT EXCEED THE GREATER OF (a) U.S. $200 OR (b) THE CHARGES PAID TO MICROTECHNICS. SUCH EXCLUDED DAMAGES SHALL INCLUDE COSTS AND ATTORNEY’S FEES.
10.2 IN NO EVENT WILL MICROTECHNICS OR ITS SUPPLIERS OF GOODS OR SERVICES BE LIABLE TO YOU OR ANY OTHER PERSON FOR (a) ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, REVENUES, PROFITS OR SAVINGS, EVEN IF MICROTECHNICS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, (b) CLAIMS, DEMANDS OR ACTIONS AGAINST YOU BY ANY PERSON, (c) LOSS OR DAMAGE TO YOUR DATA FROM ANY CAUSE OR (d) COSTS AND ATTORNEYS FEES.
10.3 You acknowledge that the limitations contained in this Section permit MICROTECHNICS to provide Software and other Products at lower rates than MICROTECHNICS otherwise could, and such limitations are reasonable. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO LIMIT MICROTECHNICS’S EXPOSURE FOR DAMAGES. MICROTECHNICS SHALL NOT BE LIABLE TO YOU FOR ANY REASON OTHER THAN AS EXPRESSLY SET FORTH HEREIN. REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, MICROTECHNICS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, EVEN IF MICROTECHNICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MICROTECHNICS’S TOTAL LIABILITY FOR ALL CAUSES OF ACTION ADDED TOGETHER MAY NOT EXCEED THE AMOUNT DESCRIBED IN THIS SECTION 7. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, so the above limitations may not apply to you.
11. No Other Warranties
Except as specifically provided herein, MICROTECHNICS makes no warranty or representation, either express or implied, with respect to its Software or other Products, including its quality, performance, merchantability or fitness for a particular purpose.
MICROTECHNICS may immediately terminate this Agreement if you are in default of any provision of this Agreement. In the event of such termination, you must either return or destroy the Software and all copies thereof, in whole or in part, and provide MICROTECHNICS with written certification of such return or destruction.
You may not export or re-export the Software or any direct product thereof without the appropriate United States or foreign government export licenses and approvals.
14. European Union Software Directive
If European Union Directive 91/250/EEC applies to your use of the Software, and you desire to obtain information that is indispensable to achieve interoperability of independently created software with the Software as permitted under Article 6 of the Directive (the "Information"), you must notify MICROTECHNICS, in writing, specifying the software for which interoperability is sought (the "Integration Software"). If MICROTECHNICS reasonably determines that you are entitled to such Information, MICROTECHNICS shall, at its option, either: (a) provide the Information necessary to achieve interoperability between the Software and the Integration Software; or (b) allow you to reverse engineer the Software, within the limits prescribed by the Directive, solely to the extent necessary to obtain the required Information. If MICROTECHNICS elects to provide the Information to you, you agree to provide MICROTECHNICS with all information and assistance reasonably necessary to enable MICROTECHNICS to provide the Information.
15. Support Services
For a period of ninety (90) days following your purchase of the Software, MICROTECHNICS will provide telephone and/or email technical support concerning the installation and use of the Software. MICROTECHNICS shall respond to support requests within two business days for calls received during its normal business day (9:00 a.m. to 4:00 p.m. PST Monday through Friday, excluding legal holidays). MICROTECHNICS shall undertake commercially reasonable efforts to correct any reproducible error reported in the then-current release of the Software. At your option, and upon payment of the then-applicable annual support service fees, you may extend your right to receive support services, in which case you shall be entitled to receive one (1) copy of all published revisions, updates and enhancements of the Software that are not designated as new products for which MICROTECHNICS charges a separate fee.
16. Other Provisions
16.1 Unless otherwise stated, MICROTECHNICS and you have the right to cure any default within a reasonable time from notice of the default.
16.2 This Agreement will be governed by the law of the State of California excluding its conflict of laws rules. The rights and obligations provided under chapter 625 of the Connecticut General Statutes are in addition to and not in lieu of any conflicting tort, restitutionary, or other law of the State of Connecticut pertaining to civil liability for misappropriation of a trade secret. All disputes arising in connection with this Agreement shall be resolved in the State or Federal courts of California, and you hereby submit to the personal jurisdiction of such courts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
16.3 This Agreement constitutes the entire agreement between MICROTECHNICS and you with respect to the Products and Services. This Agreement supersedes all earlier proposals and agreements, both written and oral, and all other written and oral communications between MICROTECHNICS and you. The terms and conditions of this Agreement will supersede all other terms and conditions you may have submitted.
16.4 You will not assign or transfer your rights or obligations under this Agreement without prior written consent of MICROTECHNICS. Any assignment or transfer prohibited by this provision will be null and void.
16.5 This Agreement may be modified only in a writing signed by a duly authorized officer of MICROTECHNICS.
16.6 No proceeding or legal action, regardless of its form, whether in contract or tort, including negligence, related to or arising out of this Agreement, may be brought by either party more than one year after the cause of action first accrued.
16.7 If any part of this Agreement is ruled by any arbitrator, court or administrative or regulatory agency to be unenforceable or invalid, this Agreement shall be automatically modified to eliminate that part and the remainder will remain in full force and effect.
16.8 All questions concerning this Agreement should be directed to: Microtechnics, 7970 Twin Rocks Rd, Granite Bay, CA USA, Attention: Legal.
All rights reserved under the copyright laws of the United States. Microtechnics, 7970 Twin Rocks Rd, Granite Bay, CA 95746.
BY DOWNLOADING OR INSTALLING THE SOFTWARE, YOU ARE DEMONSTRATING THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS.