License Terms Agreement for Thinix Software and Thinix Hardware
IMPORTANT - READ CAREFULLY: Be sure to carefully read and understand all of the rights and restrictions described in this Software License Terms Agreement (“Agreement”).
This Agreement is a legal agreement between YOU (either an individual or a single legal entity who will be referred to in this Agreement as “YOU” and “YOUR”) and Thinix®, a division of R & D Industries, Inc.
Thinix sells both Thinix Brand Software and Thinix Brand Hardware and this Agreement applies to both the Thinix Brand Software and Thinix Brand Hardware, but does not apply to third party software or hardware, except for when referred to specifically below. In any event Thinix makes no claims, warranties or certifications in any way in regards to third party software and hardware. Any Thinix Brand computer device or other Thinix Brand Hardware product that is manufactured and sold by Thinix is called the “HARDWARE” in this Agreement.
“SOFTWARE” means the Thinix Brand Software manufactured and sold by Thinix, and includes any associated media (including copies), printed materials and any “online” or electronic documentation or authorized upgrades or supplements from Thinix for such software. This Agreement grants YOU license rights ONLY if the SOFTWARE is genuine Thinix SOFTWARE.
Reviewing and Retaining the Agreement: Whether YOU download the SOFTWARE from an authorized web site or YOU receive it with the HARDWARE or third party hardware, the SOFTWARE will not be able to be used until YOU agree to this Agreement (see below for obtaining a refund if YOU do not agree). YOU may print the text of this Agreement, or refer to the copy that can be found in the legal information section of the onscreen Help file within the SOFTWARE. PLEASE NOTE: The terms of a paper Agreement or an Agreement delivered at YOUR request supersede the terms of any on-screen Agreement found within the SOFTWARE.
YOUR Agreement. BY CLICKING THE “ACCEPT” OPTION, BY USING THE HARDWARE DEVICE, OR BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU HAVE AGREED TO BE BOUND BY THIS AGREEMENT. YOUR selection of the “accept” option is a symbol of YOUR signature and YOUR assent to all parts of this Agreement. If YOU do not want to agree, do not take any of the above actions and return both the Hardware Device and the SOFTWARE to the place where YOU acquired them for a refund. If YOU cannot obtain a refund, contact the Thinix subsidiary serving YOUR country, or write to: Thinix Sales Information Center, 812 10th St, Milford, IA 51351, USA, or visit Thinix on the World Wide Web at http://www.thinix.com. SOFTWARE AND/OR THINIX BRAND HARDWARE LICENSE and TERMS:
The SOFTWARE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE is licensed, not sold.
The below note from Microsoft applies only to HARDWARE and SOFTWARE that contain software from Microsoft.
NOTE REGARDING THIRD PARTY SOFTWARE FROM MICROSOFT. YOU have acquired a device (“DEVICE”) that includes software licensed by Thinix from an affiliate of Microsoft Corporation (“MS”). Those installed software products of MS origin, as well as associated media, printed materials, and “online” or electronic documentation (“MS SOFTWARE”) are protected by international intellectual property laws and treaties. Manufacturer, MS and its suppliers (including Microsoft Corporation) own the title, copyright, and other intellectual property rights in the MS SOFTWARE. The MS SOFTWARE is licensed, not sold. All rights reserved.
GENERAL LICENSE TERMS FOR THE SOFTWARE. This Agreement grants YOU the following rights, limitations and responsibilities:
SOFTWARE INSTALLATION AND USE. Except as otherwise expressly provided in this Agreement, YOU may only install, use, access, run, or otherwise interact with (“Run”) one copy of the SOFTWARE on a single computer, such as a workstation, terminal, or other digital electronic device (“Workstation Computer”) for use with the applicable Hardware Device. Unless otherwise notified, all SOFTWARE is able to be installed and licensed one time on one computer.
NO CONCURRENT USE. The SOFTWARE may not be installed, accessed, displayed, run, shared or used concurrently on or from different Computers.
OPERATING SYSTEM UPGRADES. The SOFTWARE may contain operating systems components’ software upgrades required for proper operation of the SOFTWARE. Any such operating systems’ software upgrades are licensed to YOU under the terms and conditions of the operating system software license or a separate end user license agreement provided with such upgrades, not this Agreement.
LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. YOU may not reverse engineer, decompile, or disassemble the SOFTWARE, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
RESTRICTED USES. Thinix SOFTWARE and HARDWAREs are not licensed or intended for use in life safety or mission critical applications and may not be used as such and are not licensed or intended for use during the operation of a motor vehicle. YOU agree to not use the SOFTWARE and/or HARDWARE while operating any type of motor vehicle.
RENTAL. YOU may not rent or lease or lend the SOFTWARE, without prior written consent by Thinix.
THIRD PARTY SOFTWARE. The SOFTWARE may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located on the individual websites of the respective third party software providers. Please see http://thinix.com/onlinehelp/thinixkiosk/thirdpartysoftware.asp for a list of third party software and their website addresses. By accepting this Agreement, YOU are also accepting the additional terms and conditions, if any, of the third party software providers.
NO INDEPENDENCE. The SOFTWARE is licensed for use only with the Hardware Device as a single integrated whole under this Agreement. The SOFTWARE may only be used with the Hardware Device, not other devices. The SOFTWARE may not be transferred independently from the Hardware Device.
EMBEDDED OR LIMITED USES. Where the SOFTWARE is used as part of an embedded or limited use computer system, YOU may not alter the SOFTWARE to change the functionality to be greater than an embedded or limited use computer system.
INSTALLED SOFTWARE. SOFTWARE that is already installed on HARDWARE at the time of sale to YOU, may not be transferred to another piece of hardware or device.
NOT FOR RESALE SOFTWARE. If the SOFTWARE is labeled “Not for Resale” or “NFR”, then, notwithstanding other sections of this Agreement, YOU may not resell, or otherwise transfer for value, the SOFTWARE.
AUTOMATIC UPDATES. YOU acknowledge and agree that Thinix may at their discretion automatically check the version of the SOFTWARE and/or its components YOU are utilizing and may provide upgrades and/or supplements to the SOFTWARE and/or its components that will be automatically downloaded to the Workstation Computer, Hardware Device, SOFTWARE and/or all other computers or devices that work with the SOFTWARE. YOUR use of the SOFTWARE and the related Hardware Device including such upgrade and/or supplement shall be governed by this Agreement (as supplemented or modified by any Thinix Agreement that is provided with the upgrade and/or supplement.).
CANCELLATION. Without prejudice to any other rights, Thinix may cancel YOUR rights under this Agreement if YOU fail to comply with its terms and conditions. In such event, YOU must destroy all copies of the SOFTWARE and all of its component parts.
TRADEMARKS. This Agreement does not grant YOU any rights in connection with any trademarks or service marks of Thinix or its suppliers.
SUPPORT SERVICES. Thinix may provide YOU with support services related to the SOFTWARE and/or HARDWARE (“Support Services”). Use of Support Services is governed by the Thinix policies and programs described in the sales material, in “online” documentation, and/or other Thinix-provided materials. Any supplemental SOFTWARE code provided to YOU as a part of Support Services shall be considered part of the SOFTWARE and subject to the terms of this Agreement, except that the Limited Warranty does not apply to Support Services or that supplemental code. With respect to technical information YOU provide to Thinix as part of the Support Services, Thinix may use such information for its business purposes, including for product support and development. Thinix will not utilize such technical information in a form that personally identifies YOU.
RESERVATION OF RIGHTS. Thinix reserves all rights not expressly granted to YOU in this Agreement.
SOFTWARE FUNCTIONALITY: YOU acknowledge and agree that the SOFTWARE is intended for use under certain conditions and with certain required third party software as specified in the sales documentation. YOU acknowledge and agree that the third party software and conditions upon which the use of the SOFTWARE is dependent may change from time to time, and that these changes may be outside the control of both YOU and Thinix, and that these changes my render the SOFTWARE to no longer function as intended by Thinix, and YOU further acknowledge and agree that should the SOFTWARE no long function as intended due to changes in third party software or requirements of the SOFTWARE that Thinix is not responsible for repair, refund, or replacement of the SOFTWARE.
EXPORT RESTRICTIONS. YOU acknowledge that the SOFTWARE licensed under this Agreement is subject to U.S. export jurisdiction. YOU agree to comply with all applicable international and national laws that apply to the SOFTWARE, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
GENERAL PROVISIONS: The following provisions apply to the SOFTWARE and also to the HARDWARE.
DISCLAIMER OF WARRANTIES
Except for express warranties stated in the Limited Warranty and except for any implied warranties that exist under applicable law and that cannot be disclaimed, YOU AGREE THAT THE SOFTWARE, HARDWARE DEVICE AND ANY SUPPORT SERVICES ARE: (1) PROVIDED AS IS AND WITH ALL FAULTS, AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU; and (2) that Thinix and its suppliers, affiliates, and agents MAKE NO, AND DISCLAIM ALL OTHER WARRANTIES OF EVERY NATURE, INCLUDING BUT NOT LIMITED TO: ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR ANY PURPOSE OR OF SYSTEM INTEGRATION, OR CREATED BY TRADE USAGE OR COURSE OF DEALING; ALL DUTIES OF REASONABLE WORKMANLIKE EFFORT OR LACK OF NEGLIGENCE, and; ANY (IF ANY) IMPLIED OR SIMILAR OBLIGATIONS REGARDING TRANSMISSION, AVAILABILITY, ACCURACY, FUNCTIONALITY OR LACK OF VIRUSES OR HARMFUL CODE. Also, THERE IS NO WARRANTY OF TITLE OR AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, HARDWARE DEVICE OR ANY SUPPORT SERVICE OR AGAINST INFRINGEMENT OR THE LIKE. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE FULL EXTENT ALLOWED BY LAW, Thinix AND ITS SUPPLIERS, AFFILIATES AND AGENTS ARE NOT LIABLE FOR ANY:
(i) CONSEQUENTIAL OR INCIDENTAL DAMAGES;
(ii) DAMAGES OR LOSS OF ANY NATURE WHATSOEVER RELATING TO LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR PRIVACY OR CONFIDENTIALITY, ANY INABILITY TO USE ALL OR PART OF THE HARDWARE DEVICE OR SOFTWARE, PERSONAL INJURY, OR ANY FAILURE TO MEET ANY DUTY (INCLUDING BUT NOT LIMITED TO ANY DUTY OF NEGLIGENCE, GOOD FAITH OR OF WORKMANLIKE EFFORT); OR
(iii) INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE SOFTWARE, HARDWARE DEVICE OR SUPPORT SERVICES. THE FOREGOING APPLIES EVEN IF THINIX OR ANY SUPPLIER, AFFILIATE OR AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES; AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), STRICT OR PRODUCT LIABILITY, MISREPRESENTATION OR OTHER REASON.
LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY. YOUR exclusive remedy for any breach of the Limited Warranty is set forth in the Limited Warranty. AS FOR ALL OTHER BREACHES OF THIS AGREEMENT BY THINIX, ITS SUPPLIERS, AFFILIATES OR AGENTS, YOU AGREE THAT YOUR SOLE REMEDY FOR ANY SUCH BREACH AND FOR ANY OTHER CAUSE OF ACTION OF ANY NATURE RELATING TO PARTS 1 OR 2 OF THIS AGREEMENT OR TO THE SOFTWARE, HARDWARE DEVICE, OR SUPPORT SERVICES SHALL BE, AT THINIX’S OPTION, (1) repair or replacement of all or part of the SOFTWARE, Hardware Device or Support Service (including without limitation, repair or replacements with non-Thinix items); or (2) refund of the amount YOU actually paid for the respective SOFTWARE, HARDWARE or Support Service causing YOUR damages, which refund amount shall not exceed the actual damages incurred by YOU in reasonable reliance; or (3) with respect to Support Services, any lesser and different remedy or limitation contained in the contract for those services. YOU agree that the damage exclusions in this Agreement and this limitation of liability shall apply even if any remedy fails of its essential purpose. These limitations do not apply to the extent of any liabilities that cannot be excluded or limited by applicable law. GOVERNING LAW; EXCLUSIVE FORUM. If YOU acquired the HARDWARE and/or SOFTWARE in the United States of America, all parts of this Agreement (including the Limited Warranty) shall be construed under and controlled by the laws of the State of Iowa, U.S.A., and YOU irrevocably consent to exclusive jurisdiction and venue in the federal courts sitting in Polk County, IA unless no federal subject matter jurisdiction exists, in which case YOU irrevocably consent to exclusive jurisdiction and venue in the Superior Court of Polk County, IA. If YOU acquired this Hardware Device outside of the United States, then local laws may apply.
DATA COLLECTION. By using any Thinix product YOU agree that Thinix may collect information regarding how YOU use the Thinix products and YOU further agree that Thinix may use that information for Thinix's purposes, including to provide products, services, or content to YOU.
ADVERTISING. By using any Thinix product YOU agree to participate and in any advertising or marketing program that might be integrated with the Thinix product YOU are using.
INFORMATION YOU PROVIDE TO THINIX. By submitting your information or using any Thinix products you authorize Thinix to use your information. We will use your information for a number of purposes including: to contact you, to provide you with services, and to customize the way we present content to you. We will generally only use your information within Thinix and with Thinix’s partners and service providers that are used to provide content or services to you. For additional information please contact Thinix at 812 10th Street, Milford, IA 51351, or on the web at www.Thinix.com
QUESTIONS. Should YOU have any questions concerning this agreement, or if YOU desire to contact Thinix for any reason, write Thinix at 812 10th St, Milford, Iowa 51351, or visit Thinix on the World Wide Web at www.Thinix.com