MODERN DAY MYSTIC SOFTWARE DISCLAIMER / EULA
PLEASE READ THIS AGREEMENT CAREFULLY. IT LIMITS CERTAIN OF YOUR RIGHTS, INCLUDING YOUR RIGHT TO MAINTAIN A COURT ACTION. FOR MORE INFORMATION SEE PARAGRAPHS 14 AND 15.
This is a License Agreement between you and Self Empowerment Technology LLC, a Connecticut limited liability company with its principal office located at 502 Sienna Dr, Danbury, CT 06810 (“COMPANY”), that describes your rights to use the Modern Day Mystic Software, including Aquaware, TheSourxe, 12th Project, LightBody, Smokerase, and Navitus (“Software”).
1. Non-Exclusive License. We do not sell our Software or your copy of it. We only license it. We grant you the right to install and run up to 3 copies of the Software on up to 3 Devices (the Licensed Devices) for use by one person at a time, but only if you comply with all the terms of this Agreement. In this Agreement, “Device” means a hardware system (whether physical or virtual) with a storage device capable of running the Software. A hardware partition or blade is considered to be a Device. The components of the Software are licensed as a single unit. You may not separate or virtualize the components and install them on different Devices. The Software may include more than one version, and you may not install and run more versions at a time than copies of the Software permitted by this license. This license is for direct use of the Software only through the input mechanisms of a licensed Device, such as a keyboard, mouse, or touchscreen. It does not give permission for installation of the Software on a server or for use by or through other Devices connected to the server over an internal or external network. The Software is also not licensed for commercial hosting.
2. Restrictions. COMPANY reserves all rights not expressly granted in this Agreement. In particular, this license does not give you the right to, and you may not: use, rent, lease, or lend the Software; transfer the Software (except as permitted by this Agreement), attempt to circumvent technical protection measures in the Software, reverse engineer, decompile, or disassemble the Software, except if the laws where you live permit this even when our Agreement does not. In that case, you may only do what your law allows.
3. Updates. COMPANY may on occasion update the Software. COMPANY is not required to install automatic updates of the Software. If an update is made, COMPANY will make it available for you to download and install on a Licensed Device.
4. Trial Version. Some or all of the Software may be licensed to you on a trial basis. Your rights to use trial Software are limited to the trial period. The trial Software and length of the trial period are set forth during the Software activation process. You may have the right to convert your trial rights to perpetual rights. Conversion options will be presented to you at the end of the trial period. After the expiration of any trial period without conversion, most features of the trial Software may stop running. TRIAL SOFTWARE IS LICENSED “AS-IS” AND YOU BEAR THE RISK OF USING IT. COMPANY GIVES NO EXPRESS WARRANTIES, GUARANTEES, OR CONDITIONS. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, COMPANY EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
5. Backup Copies. You may order or download a backup copy of the Software from COMPANY’s website. You may not distribute the backup copy of the Software. You may use it only to reinstall the Software on a licensed Device.
6. Transfer and Reassignment. You may not transfer the Software to another user. You may transfer the Software directly to a third party only as installed on a Licensed Device. Before the transfer, that party must agree that this Agreement applies to the transfer and use of the Software. You may not retain any copies. You may reassign this Software license to a different Device any number of times, but not more than one time every 90 days. If you reassign, that other Device becomes the Licensed Device. If you retire the Licensed Device due to hardware failure, you may reassign the license sooner.
7. Limited Warranty. Other than for trial Software, which is licensed “as-is” and without express warranties, guarantees, and conditions, COMPANY provides the following limited warranty for the Software. COMPANY warrants that properly licensed Software will perform substantially as described in any COMPANY materials that accompany this Software. This limited warranty does not cover problems that you cause, or that arise when you fail to follow our instructions, or that are caused by events beyond COMPANY’s reasonable control. The limited warranty starts when the first user of your copy of the Software acquires that copy, and lasts for one year. Any supplements, updates, or replacement Software that you may receive from COMPANY during that year are also covered, but only for the remainder of that one-year period or for 30 days, whichever is longer. Transferring the Software will not extend the term of the limited warranty. COMPANY gives no other express warranties, guarantees, or conditions. COMPANY EXCLUDES ALL IMPLIED WARRANTIES, IINCLUDING THOS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IF YOUR LOCAL LAW DOES NOT ALLOW COMPANY’S EXCLUSION OF IMPLIED WARRANTIES, THEN ANY IMPLIED WARRANTIES, GUARANTEES, OR CONDITIONS LAST ONLY DURING THE TERM OF THE LIMITED WARRANTY AND ARE LIMITED AS MUCH AS YOUR LOCAL LAW ALLOWS. IF YOUR LOCAL LAW REQUIRES A LONGER LIMITED WARRANTY TERM DESPITE THIS AGREEMENT, THEN THAT LONGER TERM WILL APPLY, BUT YOU CAN RECOVER ONLY THE REMEDIES THAT ARE DESCRIBED IN THIS AGREEMENT. If COMPANY breaches its limited warranty, your only remedy is the repair or replacement of the Software. We also have the option to refund you the price you paid for the Software instead of repairing or replacing it, and prior to refund, you must uninstall the Software and return it to COMPANY with proof of purchase. If COMPANY breaches this limited warranty, you may not recover consequential damages, lost profit, or special, direct, or incidental damages. The damage exclusions and limitations in this Agreement apply even if repair, replacement, or a refund for the Software do not fully compensate you for any losses COMPANY knew or should have known the possibility. SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO THOSE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IF YOUR LOCAL LAW ALLOWS YOU TO RECOVER OTHER DAMAGES FROM COMPANY EVEN THOUGH COMPANY DOES NOT, YOU CANNOT ECOVER MORE THAN IS OTHERWISE PERMITTED BY THIS AGREEMENT.
8. Non-Disparagement. You will not, directly or indirectly, in public or private, deprecate, impugn, disparage, or defame COMPANY or COMPANY’s employees, independent contractors, members of their board of directors, or agents, nor will you assist any other person or entity in doing so. You acknowledge that any breach of this section will cause COMPANY irreparable harm for which COMPANY will have no adequate remedy at law. As a result, COMPANY will be entitled to the issuance of an injunction, restraining order, or other equitable relief in COMPANY’s favor restraining you from committing or continuing any such violation. Any right to obtain an injunction, restraining order, or other equitable relief hereunder will not be deemed a waiver of any right to assert any other remedy which COMPANY may have under this Agreement or otherwise at law or in equity. COMPANY will not be required to furnish a bond or other undertaking in connection any such application for equitable or injunctive relief.
9. Medical Disclaimer. You agree that the Software is for recreational purposes only, is not a medical device, and that no medical advice is offered by or in connection with the Software.
10. Indemnification. You agree to and will indemnify and hold harmless COMPANY, its members, managers, employees, agents, and subcontractors from and against all claims, lawsuits, including those brought by third parties or you, including reasonable attorney’s fees, and losses asserted against and alleged to be caused by or on behalf of COMPANY’s performance, negligent performance, or failure to perform its obligations under this Agreement.
11. Exculpatory Clause. You agree that COMPANY is not an insurer and no insurance coverage is offered herein. COMPANY is not assuming liability, and therefore will not be liable to you for any loss, injury, or damage sustained by you as a result of any cause whatsoever, regardless of whether such loss, injury, or damage was caused by or contributed to by COMPANY’s negligent performance, failure to perform any obligation, or strict products liability. You release COMPANY from any claims for contribution, indemnity, or subrogation.
12. Limitation of Liability. You agree that should there arise any liability on the part of COMPANY as a result of COMPANY’s negligent performance to any degree, failure to perform any of COMPANY’s obligations, or strict products liability, that COMPANY’s liability will be limited to the lesser of the sum you paid COMPANY for licensing the Software or $250.
13. Legal Action. This Agreement and our respective obligations will be governed by the laws of the State of New York. Any litigation relating to this Agreement or between us must be commenced and maintained exclusively in any court of competent jurisdiction located in Nassau County, State of New York, or Fairfield County, State of Connecticut. We agree to waive trial by jury in any dispute between us. You agree that any claim not asserted by you against COMPANY within 1 year after its accrual will be time barred.
14. ARBITRATION/CLASS ACTION WAIVER. AS A CONDITION OF THIS AGREEMENT, YOU AND COMANY (AND OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, AND SUCCESSORS AND ASSIGNS) AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO A JURY TRIAL IN ANY ACTION OR PROCEEDING INVOLVING US. YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL VOLUNTARILY AND KNOWINGLY, AND FREE FROM DURESS OR COERCION. YOU UNDERSTAND THAT YOU HAVE A RIGHT TO CONSULT WITH A PERSON OF YOUR CHOOSING, INCLUDING AN ATTORNEY, BEFORE ACCEPTING THIS AGREEMENT. YOU AND COMPANY AGREE THAT WE MAY BRING CLAIMS AGAINST EACH OTHER ONLY IN OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS ACTION MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU UNDERSTAND THAT INSTEAD OF SUING OR BEING SUED IN COURT, YOU AND COMPANY MAY SETTLE DISPUTES BY ARBITRATION. THE RULES IN ARBITRATION ARE DIFFERENT. THERE’S NO JUDGE OR JURY, THE ABILITY OF THE PARTIES TO OBTAIN DOCUMENTS, WITNESS STATEMENTS, AND OTHER DISCOVERY IS GENERALLY MORE LIMITED THAN IN COURT PROCEEDINGS, AND REVIEW IS LIMITED, BUT AN ARBITRATOR CAN AWARD THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME LIMITATIONS STATED IN THE AGREEMENT AS A COURT WOULD. THE ARBITRATOR MAY AWARD INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. YOU AGREE THAT ANY DISPUTE BETWEEN YOU AND COMPANY, INCLUDING BUT NOT LIMITED TO THE SCOPE OF THIS ARBITRATION CLAUSE AND ISSUES OF ARBITRABILITY, OR ANY DISPUTE RELATING TO THIS AGREEMENT OR BASED ON A FEDERAL OR STATE STATUTE (EXCEPT WHERE PROHIBITED BY LAW), MAY, AT THE OPTION OF EITHER YOU OR COMPANY, BE RESOLVED BY ARBITRATION ADMINISTERED BY ARBITRATION SERVICES, INC. UNDER ITS CONSUMER ARBITRATION RULES, WHICH ARE INCORPORATED BY REFERENCE AS IF SET FORTH FULLY HEREIN AND AVAILABLE AT WWW.ARBITRATIONSERVICESINC.COM, AND MAY BE REQUESTED BY LETTER TO ARBITRATION SERVICES, INC., 7600 JERICHO TURNPIKE, SUITE 402, WOODBURY, NEW YORK 11797, BY FAX AT (516) 364-3456, OR BY TELEPHONE AT (516) 364-1730. THIS AGREEMENT EVIDENCES A TRANSACTION IN INTERSTATE COMMERCE, AND THUS THE FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS PROVISION.
15. Full Agreement/Severability. This Agreement constitutes the full understanding of the parties herein and may not be amended or modified or canceled except in writing signed by all parties. Should there arise any conflict between this Agreement and any other document preceding it, this Agreement will govern. If any provision of this Agreement is deemed invalid or unenforceable as written, it will be construed, to the greatest extent possible, in a manner which will render it valid and enforceable, and any limitation on the scope or duration of any such provision necessary to make it valid and enforceable will be deemed to be part thereof. Should any provision of this Agreement be deemed void, all other provisions will remain in effect.