FUSION® End User License Agreement
IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. BY INSTALLING OR USING ANY FUSION HARDWARE, SOFTWARE OR DOCUMENTATION, YOU AGREE TO AND WILL BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, (a) DO NOT INSTALL OR USE THE FUSION PRODUCTS AND (b) RETURN THE PRODUCTS TOGETHER WITH ALL PACKAGING TO THE POINT OF PURCHASE WITHIN TEN (10) DAYS FOLLOWING PURCHASE FOR A FULL REFUND.
FUSION® END USER LICENSE AGREEMENT
This END USER LICENSE AGREEMENT (“Agreement“) is entered into by and between HIS, Inc., (“HOTEL INTERNET SERVICES”) and the end user (“you“). This Agreement sets forth the terms and conditions governing (a) your purchase of the hardware listed on HIS’S price list (the “Hardware“) directly from HIS or from one of HIS’S authorized distributors, authorized resellers or other authorized agents (each, a “Reseller“) and (b) your right to access and use (i) the computer software whether in program or data file (whether on disk, in read-only memory, on any other media and whether embedded in the Hardware or provided on a stand-alone basis and/or remotely provided, including all updates, upgrades, major releases, feature releases, and bug fix releases, the “Software“) and (ii) the user documentation provided by HIS for that Hardware and/or Software (whether in printed or electronic form, the “Documentation“). The Hardware, Software and Documentation (in each case including any part thereof) are sometimes collectively referred to as the “Product“.
NO RESELLER OR ANY OTHER PERSON HAS THE AUTHORITY TO EXPAND HIS’ OBLIGATIONS OR LIABILITY UNDER THIS AGREEMENT.
YOUR WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF SUCH WRITTEN APPROVAL ON BEHALF OF HIS WILL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. IF THIS AGREEMENT IS CONSIDERED AN OFFER BY HOTEL INTERNET SERVICES, YOUR DOWNLOADING, INSTALLATION OR USE OF THE SOFTWARE OR THE DOCUMENTATION CONSTITUTES YOUR ACCEPTANCE OF THAT OFFER. YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS SET FORTH BELOW. THE DOWNLOADING, INSTALLATION OR USE OF ANY FUTURE SOFTWARE UPGRADES OR DOCUMENTATION IS ALSO SUBJECT TO THIS AGREEMENT.
IF A RESELLER, SERVICE PROVIDER, CONSULTANT, CONTRACTOR, EMPLOYEE OR ANY OTHER PERSON DOWNLOADS, INSTALLS OR USES THE SOFTWARE OR DOCUMENTATION FOR YOU, THAT RESELLER, SERVICE PROVIDER, CONSULTANT, CONTRACTOR, EMPLOYEE OR OTHER PERSON WILL BE DEEMED TO BE YOUR AGENT ACTING ON YOUR BEHALF, AND YOU WILL BE DEEMED TO HAVE ACCEPTED THIS AGREEMENT AS IF YOU HAD DIRECTLY DOWNLOADED, INSTALLED AND/OR USED THE PRODUCT. IF YOU ARE AN EMPLOYEE OR INDEPENDENT CONTRACTOR OF THE END USER OR OF THE RESELLER, SERVICE PROVIDER, CONSULTANT OR CONTRACTOR OF THE END USER, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE END USER TO THIS AGREEMENT.
- Ownership. Upon your payment in full for the Product, you will own the Hardware, but you will not own the Software, the Documentation or the trade secrets related to the Product. The Software, the Documentation, and those trade secrets are licensed to you under Section 2 below; they are not sold, and HIS (or its licensors) owns all rights, title and interests, including any and all Intellectual Property Rights in and to the Products. “Intellectual Property Rights” means and includes any and all patents, data rights, database rights, utility models, business processes, trade secrets, know how, trademarks, service marks, names, trade names, mask works, copyrights, moral rights and any other form of proprietary protection, or any application therefore, under the laws of the United States, any other jurisdiction or any bi-lateral or multi-lateral treaty regime.
- Grant of License. Subject to your compliance with this Agreement, (a) HIS grants you, the original end user, a limited, fee-bearing, non-exclusive, non-assignable, non-sub-licensable, non- transferable, revocable license to use the Software, the Documentation, the trade secrets and the other Intellectual Property Rights embodied in or used by the Product during the Initial Term (described in Section 6 below) and if applicable, any renewal term, in accordance with the Documentation and this Agreement; and (b) you may use the Software, the Documentation, the trade secrets and the other Intellectual Property Rights related to the Product, only at your premises and only for your internal business purposes, including for enabling those present on your premises to receive the benefits provided by the Product.
- License restrictions.
- General Restrictions. You will not: (i) copy the Software or the Documentation, (ii) modify, create derivative works of, or translate the Software or the Documentation, (iii) incorporate the Software into or with other software; (iv) sublicense, rent, or otherwise provide or disclose the Software, the Documentation, the trade secrets or any other Intellectual Property Rights related to the Product, to any third party except as expressly permitted in this Agreement; (v) use the Software or any of the other Intellectual Property Rights related to the Product for illegal purposes or in violation of any third party’s rights; (vi) reveal serial numbers, accounts, passwords, device identification numbers, or other information that could jeopardize the integrity of your HIS account; (vii) modify, delete or tamper with the Splash Screen containing the FUSION Design mark and/or other FUSION trademarks and/or tag lines; or (viii) delete, remove, conceal or modify any Intellectual Property Rights notices or any other notices (concerning any applicable restrictions of use or export) on any Product.
- Restrictions on Reverse Engineering. Except and only to the extent expressly authorized by applicable law, you will not reverse engineer, decompile, disassemble or reveal underlying ideas or algorithms, of the Software or any other trade secrets related to the Product except and only to the extent that is expressly permitted by applicable law notwithstanding this limitation. To the extent applicable legislation implementing Article 6 of the European Community’s Directive for the Legal Protection of Computer Programs, OJL 122/42 (17 May 1991) (the “Directive”) may allow you to decompile the Software or the Documentation in order to obtain information necessary to achieve the interoperability of an independently created computer program, you agree, prior to exercising any such possible rights under the Directive COMPANY, to (i) first notify HIS of your good faith belief that information necessary to achieve the interoperability of an independently created computer program is not otherwise available and that de-compilation is indispensable within the meaning of the Directive; and (ii) provide HIS with a commercially reasonable amount of time to respond to you regarding that assertion.
- Keys; Disabling Code. The Software may include “disabling code” that will prevent the Software from operating normally following the expiration of the license described below. In addition, a software key is required or may be required to unlock and activate the Software before the Product can be used. You will (i) not tamper with the Software in any way that would circumvent the requirement for that key, (ii) use the key only to activate the Software for which it was issued and for no other purpose; and (iii) maintain the confidentiality of all information related to the key, including which Product is associated with that key.
- No Implied License or Rights. Except for the licenses in Section 2, HIS reserves all Intellectual Property Rights in the Software.
- High Risk Activities. The Software is not fault-tolerant and is not intended for use in hazardous environments requiring fail-safe performance (for example, the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, medical device and life support machines, or weapon systems) in which Software failure could lead to death, personal injury or severe physical and environmental damage (“High Risk Activities“). Accordingly, the FUSION warranty excludes any High Risk Activities and you will not use the Software in connection with High Risk Activities of any kind.
- Term and Termination.
- License Term. Your license term starts on the earlier of the date of Product shipping from HIS and will remain in force throughout the duration of your use of this product.
- Termination. Your license to use the Software, the Documentation and the other Intellectual Property Rights related to the Product, and at HIS’ option, this Agreement, will terminate immediately without notice from HIS if: (i) you fail to pay the license fee in accordance with the agreed payment terms; or (ii) you fail to comply with any of the terms and conditions of this Agreement; or (iii) you become the subject of a bankruptcy proceeding, receivership, assignment for the benefit of creditors or other debtor relief proceeding or are insolvent. Upon the expiration or earlier termination of your license or this Agreement for any reason, you must, at HIS’s option, either return or destroy the Software and the Documentation. If you fail to do so, HIS has the right to remotely prevent your further use of the Software as described below.
- Survival. The provisions of Sections 1, 3, 4, 5, 6, 7, 9, 10, 13 and 14 will survive expiration or termination of this Agreement for any reasons.
- Disabling Code. The Software includes or may include “disabling code” that will prevent the Software and Hardware from operating normally should you breach any of the terms of this agreement.
- Export Control Requirements. In the event that you wish to export a Product from the United States, you agree to comply in all respects with the applicable United States export control laws and regulations. You will not export, directly or indirectly, any Product to any country without first obtaining any required licenses or approvals. You agree that you, and not HIS, are responsible for export control compliance; and you agree to indemnify HIS from any cost, expense, claim, demand, fine or penalty resulting from your failure to comply with applicable export control laws and regulations.
- Limited Warranty.
- a) Limited Warranty; Warranty Period. Unless otherwise expressly required by applicable law, HIS warrants to you, the original end user, that from the date you purchase the Hardware: (i) the Software will be free from material defects and will perform in substantial compliance with the Documentation for a period of ninety (90) days; and (ii) the Hardware will be free from material defects and will perform in substantial compliance with the Documentation accompanying the Hardware for a period of one (1) year [two (2) years for countries that are members of the European Union]. Upon confirmation by HIS of a warranty defect during the warranty period applicable under Section 8.a(i) or (ii) above (in each case, the “Warranty Period“), HIS, at its sole option, will either repair or replace the defective Hardware or Software or refund the amount you paid for the Product. Replacement products or repaired items may be new or with functionally equivalent refurbished items. Repair, replacement, or refund is the sole and exclusive obligation of HIS and is the only remedy available to you from HIS for defective Products. These warranty rights extends only to the original user of the Product.
- b) HIS’ obligations under Section 8.a above are subject to your satisfaction of the following conditions: (i) you have registered the Product and complied with the other provisions in this Agreement; (ii) you have not tampered with the Product’s external label or serial number; (iii) you have not opened the case of the Product; (iv) you have not modified or altered the Products; (v) you have not attempted to repair the Product; and (vi) you have used the Product only as described in the Documentation; (vii) you have not allowed any other person to take any of the preceding actions. In addition, HIS’ obligations under Section 8.a above will not apply to defects or damage resulting from accidents, acts of nature or other causes beyond HIS’ control. Your warranty rights are also subject to HIS verifying that a material defect exists and your return of the defective Product during the applicable Warranty Period.
- Warranty Disclaimer. THE WARRANTIES IN SECTION 8 (a) ARE HIS’ ONLY WARRANTIES. HIS DOES NOT WARRANT THAT ANY PRODUCT WILL (i) MEET YOUR REQUIREMENTS, (ii) BE INTEROPERABLE WITH ANY OTHER TECHNOLOGY, OR (iii) FUNCTION WITHOUT INTERRUPTION OR ERROR. EXCEPT AS EXPLICITLY WARRANTED IN SECTION 8 (a), HIS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, TRADE OR PRACTICE. WITHOUT LIMITATION TO THE FORGOING, HIS DOES NOT WARRANT THAT
THE LICENSED PRODUCTS WILL DETECT AND/OR CORRECTLY IDENTIFY AND/OR DISINFECT ALL THREATS OR OTHER HARMFUL APPLICATIONS.
- Limitation of Liability. IN NO EVENT WILL THE TOTAL LIABILITY OF HIS TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE PRODUCT GIVING RISE TO LIABILITY. UNDER NO CIRCUMSTANCES WILL HOTEL INTERNET SERVICES BE LIABLE FOR ANY LOST REVENUE OR PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT.
- Jurisdictional Limitations. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, CERTAIN WARRANTIES OR LIABILITY. HENCE, THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. THE WARRANTY IN SECTION 8.a GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
- Extended Warranty. HIS is willing to provide you, the original end user, for a limited period of time, repair services and replacement spare parts for the Hardware and updates for the Software, in each case for the fees and on the terms set forth in the then current FUSION Support Policy posted on the FUSION Website at http://fusiongateways.com (the “Support Policy“). HIS’ obligation to provide extended support is subject to the then current FUSION LIFE CYCLE POLICY. HIS may amend the Support Policy and the Life Cycle Policy by posting revisions on the HIS Website. Except as set forth in the Support Policy and the Life Cycle Policy, HIS is not obligated to provide maintenance, technical support or updates to you for any Product.
- Protection of HIS’ Intellectual Property Rights; Prohibition on Assignment. The Product contains, embodies or otherwise practices HIS or its licensors’ valuable inventions, discoveries, works of authorship, trade secrets and other valuable intellectual property rights. You will not (a) use the Product except as expressly provided in Section 2 of this EULA or (b) disclose the Product to any other person without HIS’ prior written consent, which HIS may grant, condition, delay or withhold in its sole discretion. You may not assign, sublicense or transfer this Agreement or any rights under Section 2 or elsewhere in this Agreement to any other person. If you wish to sell the Hardware, you must notify HIS and give HIS at least 30 days to disable and/or remove the Software and any of HIS’s other intellectual property rights from the Hardware. You will indemnify HIS for all damages, costs and expenses, including attorney fees, resulting from any person gaining access to HIS’ or its licensors’ intellectual property due to your transfer of a Product to any other person in violation of this section.
- Controlling Law. This Agreement will be deemed to have been made in, and will be solely and exclusively construed under, the laws of the State of California, United States of America, without giving effect to any law that would result in the application of a different body of law. The United Nations Convention on Contracts for the International Sales of Goods will not apply to this Agreement.
- Dispute Resolution. Any and all disputes arising under or in connection with this Agreement will be brought and resolved solely, exclusively and finally in the state or federal courts located in Ventura County, California, U.S.A. Each party hereby irrevocably consents to the jurisdiction and venue of the state and federal courts located in Ventura County, California, U.S.A. in connection with any claim, action, suit, or proceeding relating to this Agreement. A judgment of such court thereon may be entered in, and enforced by, any court having jurisdiction over the party against which an award is entered or the location of a party’s assets and the parties irrevocably waive any objection to the jurisdiction of such courts based on any ground. Notwithstanding the foregoing, HIS will have the right to enforce its rights under Sections 1, 3, 7 or 14, including seeking injunctive or equitable or similar relief, from any court of competent jurisdiction wherever located. The parties hereby irrevocably waive any objection that they may now or in the future have to that venue or that the action or proceeding was brought in an inconvenient location. Notwithstanding the preceding, HIS may in its sole discretion, waive its rights under this section and instead elect to have any dispute arising out of or related to this Agreement resolved by the courts in any country where you are located, and in that case, you agree those courts will have exclusive jurisdiction in relation to that dispute.
- Government Licensee. If you are acquiring any Product on behalf of any unit or agency of the United States Government, the Government acknowledges that: (i) the Product, including the Software, was developed at private expense; and (ii) the Software is “Restricted Computer Software” as that term is defined in Clause 52.227-19 of the Federal Acquisition Regulations (“FAR“) and is “Commercial Computer Software” as that term is defined in Subpart 227.471 of the Department of Defense Federal Acquisition Regulation Supplement (“DFARS“). The Government agrees that: (x) if the Software is supplied to the Department of Defense (“DoD“), the Software is classified as “Commercial Computer Software” and the Government is acquiring only “limited rights” in the Software as that term is defined in Clause 252.227-7013(a)(13) of the DFARS, and (y) if the Software is supplied to any unit or agency of the United States Government other than DoD, the Government’s rights in the Software will be as defined in Clause 52.227-19(c)(2) of the FAR. In the event that any of the above referenced agency regulations is modified or amended, the subsequent equivalent regulations will apply.
- Severability. If any provision in this Agreement is ruled entirely or partly unenforceable by any court of competent jurisdiction, then: (i) that provision will be deemed amended, and the parties will reform the provision to the minimum extent necessary to render it valid and enforceable in conformity with the parties’ intent manifest in this Agreement; and (ii) the validity and enforceability of all provisions not ruled to be invalid or unenforceable will remain unaffected.
- Inspection. HIS will have the right, at its own expense and upon reasonable written notice to you, to periodically inspect your premises and such documents as HIS may reasonably require, for the exclusive purpose of verifying your compliance with your obligations under this Agreement.
- Additional Software. You agree that through your use of the Products, HIS may periodically offer you the opportunity to license additional Software, either royalty-free or for additional consideration.
- Amendments. HIS may amend the terms of this Agreement at any time by reasonable notice, including without limitation by posting revised terms on its website at the http://fusiongateways.com which amended terms will be binding on you.
- j. Indemnification. You will defend, indemnify and hold harmless HIS, its officers, directors, employees, agents, affiliates, representatives, and distributors, from and against any and all suits, actions, claims, costs, damages, losses, liabilities and expenses (including legal fees) suffered or incurred by HIS in connection with your breach of Sections 2, 3, 5, 8 or 11.
Should you have any questions concerning this Agreement, or if you desire to contact HIS for any reason, please write to:
HOTEL INTERNET SERVICES
4590 ISH DRIVE
SIMI VALLEY, CA 93063