EnvisionWare End User License Agreement
for EnvisionWare PINPal™
(Free of charge license to download, install and use EnvisionWare PINPal on Your computer per below)
Before reading the articles below, please note the following preliminary terms, which use some of the definitions specified in Article 1 below:
Entering into this Agreement: This End User License Agreement constitutes a valid and binding agreement between EnvisionWare and You, as a user, for the use of EnvisionWare PINPal. You must enter into this Agreement by clicking on the ACCEPT button in order to install and use EnvisionWare PINPal. You hereby agree and acknowledge that this Agreement covers all Your use of EnvisionWare PINPal, whether it be from this installation or from any other terminals where EnvisionWare PINPal has been installed, by You or by third parties. Furthermore, by installing and continuing to use EnvisionWare PINPal You agree to be bound by the terms of this Agreement and any new versions hereof.
Electronic Signatures and Agreement(s): You acknowledge and agree that by clicking on the ACCEPT button or similar buttons or links as may be designated by EnvisionWare to show Your approval of any foregoing texts and/or to download and install EnvisionWare PINPal, You are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through EnvisionWare PINPal. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
Article 1 Definitions
In this Agreement the following capitalized definitions are being used, singular as well as plural.
1.1 Affiliate: any corporation, company or other entity that directly or indirectly controls, is controlled by, or is under common control with, EnvisionWare. For the purpose of this definition, the word "control" shall mean the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting stock of the corporation, company, or other entity.
1.2 Agreement: this End User License Agreement, as may be renewed, modified and/or amended from time to time.
1.3 Documentation: any online or otherwise enclosed documentation provided by EnvisionWare.
1.4 Effective Date: the date on which this Agreement is entered into by clicking on the ACCEPT button as stated above.
1.5 IP Rights: any and all intellectual property rights, including but not limited to copyrights, trademarks and patents, as well as knowhow and trade secrets contained in or relating to EnvisionWare PINPal, the Documentation, EnvisionWare Website or EnvisionWare Promotional Materials.
1.6 EnvisionWare: refers to the company established under the laws of the United States of America having its principal place of business at 2810 Premiere Parkway, Suite 350, Duluth, Georgia 30097, and Envisionware Pty Ltd, established under the laws of South Australia, having its principal place of business at 10 George Street, Stepney, South Australia 5069.
1.7 EnvisionWare Online Material: EnvisionWare banner available for download on EnvisionWare Website, consisting of a EnvisionWare logo and a link to EnvisionWare Website.
1.8 EnvisionWare Promotional Materials: any and all trademarks, names, signs, logos, banners, EnvisionWare Online Material and any other materials, in whatever form, owned and/or used by EnvisionWare for the promotion of its company, its products and activities.
1.9 EnvisionWare PINPal: the software distributed by EnvisionWare for ILS PIN creation and change, including without limitation, UI and Documentation, as well as any future programming fixes, updates and upgrades thereof.
1.10 EnvisionWare Staff: the officers, directors, employees and agents of EnvisionWare or its Affiliates, or any other persons hired by EnvisionWare or its Affiliates.
1.11 EnvisionWare Website: any and all elements, contents and the ‘look and feel’ of the website available under the URL www.envisionware.com, – among other URL’s –, from which website EnvisionWare PINPal can be downloaded.
1.12 Terms of Service: means the agreement between EnvisionWare and You for the use of EnvisionWare PINPal;
1.13 UI: the user interface of EnvisionWare PINPal.
1.14 You: you, the end user of EnvisionWare PINPal, also used in the form “Your” where applicable.
Article 2 License and Restrictions
2.1 License. Subject to the terms of this Agreement, EnvisionWare hereby grants You a limited, non-exclusive, non-sublicensable, non-assignable, free of charge license to download, install and use EnvisionWare PINPal on Your computer, for the sole purpose of managing your ILS PINs. For the avoidance of doubt, You are allowed to use EnvisionWare PINPal at work, in accordance with the terms of this Agreement.
2.2 No Granting of Rights to Third Parties. You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to EnvisionWare PINPal or any part thereof.
2.3 No Modifications. You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of EnvisionWare PINPal or any part thereof.
2.4 Third Parties. You acknowledge and agree that EnvisionWare PINPal may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in EnvisionWare PINPal falls under the scope of this Agreement. Any and all other third party software or technology that may be distributed together with EnvisionWare PINPal will be subject to you explicitly accepting a license agreement with that third party. You acknowledge and agree that you will not enter into a contractual relationship with EnvisionWare or its Affiliates regarding such third party software or technology and you will look solely to the applicable third party and not to EnvisionWare or its Affiliates to enforce any of your rights.
2.5 New Versions of EnvisionWare PINPal. EnvisionWare, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to EnvisionWare PINPal. You acknowledge and agree that EnvisionWare has no obligation to make available to You any subsequent versions of EnvisionWare PINPal. You also agree that you may have to enter into a renewed version of this Agreement, in the event you want to download, install or use a new version of EnvisionWare PINPal. Furthermore, You acknowledge and agree that EnvisionWare, in its sole discretion, may modify or discontinue or suspend Your ability to use any version of EnvisionWare PINPal, and/or disable any EnvisionWare PINPal You may already have accessed or installed without any notice to You, for the repair, improvement, and/or upgrade of the underlying technology or for any other justifiable reason, including but not limited to, circumstances where You, at EnvisionWare’s discretion, are in breach of this Agreement, creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of our policies, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons. EnvisionWare will not accept any liability in relation to the direct or indirect damages caused by (1) the release and/or the absence of release of new versions of EnvisionWare PINPal and (2) by the suspension or termination of the license or this Agreement by EnvisionWare and/or by You.
2.6 Paid Services. This Agreement applies to downloading, installing and using EnvisionWare PINPal, free of charge. The use of any paid services which may be offered by EnvisionWare or its Affiliates, is subject to the additional Terms of Service that are published on EnvisionWare Website.
Article 3 Definitions to License Restrictions and Additional Terms
3.1 Distribution of EnvisionWare PINPal. You are not allowed to distribute EnvisionWare PINPal under this Agreement.
3.2 Any other Exceptions. If You are interested in doing anything else than permitted under this Agreement, You will have to obtain EnvisionWare’s previous written consent and explicitly agree upon any further (commercial) terms.
3.3 EnvisionWare Promotional Materials. Nothing in this Agreement will give You any right to use EnvisionWare Promotional Materials.
Article 4 Utilization of Your computer
4.1 Utilization of Your computer. You hereby acknowledge that EnvisionWare PINPal may utilize the processor and bandwidth of the computer (or other applicable device) You are utilizing, for the limited purpose of facilitating the communication between EnvisionWare PINPal and your ILS.
4.2 Protection of Your computer (resources). You understand that EnvisionWare PINPal will use its commercially reasonable efforts to protect the privacy and integrity of the computer resources (or other applicable device) You are utilizing, however, You acknowledge and agree that EnvisionWare cannot give any warranties in this respect.
Article 5 Confidentiality and Privacy
5.1 EnvisionWare’s Confidential Information. You agree to take all reasonable steps at all times to protect and keep strictly confidential any confidential information regarding EnvisionWare, its Affiliates, EnvisionWare Staff, EnvisionWare PINPal and the IP Rights.
5.2 Your Confidential Information and Your Privacy. EnvisionWare is committed to respecting Your privacy and the confidentiality of Your personal data. The “Privacy Policy” that is published on EnvisionWare Website at www.envisionware.com/privacy applies to the use of Your personal data, the traffic data as well as the content contained in Your communication(s). We do not sell or rent Your personal information to third parties for their marketing purposes without Your explicit consent and we use Your information only as described in the Privacy Policy. We store and process Your information on computers that may be located outside Your country that are protected by physical as well as technological security devices. You can access and modify the information You provide in accordance with the Privacy Policy. If You object to Your information being transferred or used in this way please do not use our services.
Article 6 IP Rights
6.1 Exclusive Ownership. You acknowledge and agree that any and all IP Rights to or arising from EnvisionWare PINPal are and shall remain the exclusive property of EnvisionWare and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws. You acknowledge and understand that all title and IP Rights in and to any third party content that is not contained in EnvisionWare PINPal, but may be accessed through use of EnvisionWare PINPal, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
6.2 No Removal of Notices. You agree that You will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or EnvisionWare’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
Article 7 Communication and Your Use of EnvisionWare PINPal
7.1 Communication. Installing EnvisionWare PINPal enables You to communicate with your ILS.
7.2 No Warranties. EnvisionWare cannot guarantee that You will always be able to communicate with your ILS. EnvisionWare will not be liable for any such disruptions, delays or other omissions in any communication experienced when using EnvisionWare PINPal.
7.3 Lawful purposes. You acknowledge and agree to use EnvisionWare PINPal solely for lawful purposes.
Article 8 Term and (Consequences of) Termination
8.1 Term. This Agreement will be effective as of the Effective Date and will remain effective until terminated by either EnvisionWare or You as set forth below.
8.2 Termination by EnvisionWare. Without limiting other remedies, EnvisionWare may limit, suspend, or terminate this license and Your use of EnvisionWare PINPal, prohibit access to EnvisionWare Website and delete Your User Account and/or User ID, with immediate effect, if we think that You are in breach of this Agreement, creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of our policies, infringing someone else’s intellectual property rights, engaging in fraudulent or illegal activities, or for other similar reasons. EnvisionWare shall effect such termination by providing notice to You to the email address You have provided.
8.3 Termination by You. You may terminate this Agreement with immediate effect at any time, with or without cause and without recourse to the courts, provided that You will meet with the conditions as set forth in Article 8.4 below.
8.4 Consequences of Termination. Upon termination of this Agreement, You (a) acknowledge and agree that all licenses and rights to use EnvisionWare PINPal shall terminate, and (b) will cease any and all use of EnvisionWare PINPal, and (c) will remove EnvisionWare PINPal from all hard drives, networks and other storage media and destroy all copies of EnvisionWare PINPal in Your possession or under Your control.
8.5 No liability. EnvisionWare will not be liable in respect to any damage caused by the termination of this Agreement.
Article 9 Your Representations and Warranties; Indemnification of EnvisionWare
9.1 Representations. You represent and warrant that You are authorized to enter into this Agreement and comply with its terms. Furthermore, You represent and warrant that You will at any and all times meet with Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of EnvisionWare PINPal.
9.2 Indemnification. You agree to indemnify, defend and hold EnvisionWare, Affiliates and EnvisionWare Staff harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by said parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) use or misuse of EnvisionWare PINPal, or (d) communication with your ILS by means of EnvisionWare PINPal.
9.3 Export Restrictions. You acknowledge that EnvisionWare PINPal may be subject to international rules that govern the export of software. You agree to comply with all applicable international and national laws that apply to EnvisionWare PINPal as well as end-user, end-use and destination restrictions issued by national governments.
Article 10 Disclaimer of Warranties
10.1 No warranties. ENVISIONWARE PINPAL IS PROVIDED “AS IS”, WITH NO WARRANTIES WHATSOEVER; ENVISIONWARE DOES NOT, EITHER EXPRESSED, IMPLIED OR STATUTORY, MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO ENVISIONWARE PINPAL, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A PARTICULAR PURPOSE. ENVISIONWARE FURTHER DOES NOT REPRESENT OR WARRANT THAT ENVISIONWARE PINPAL WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE.
10.2 Your own Risk. You acknowledge and agree that the entire risk arising out of the use or performance of EnvisionWare PINPal remains with You, to the maximum extent permitted by law.
10.3 Jurisdiction’s Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event the liability will be limited as far as legally possible under the applicable legislation.
Article 11 Limitation of Liability
11.1 No Liability. EnvisionWare PINPal is being provided to You free of charge. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT ENVISIONWARE, ITS AFFILIATES, ITS LICENSORS AND ENVISIONWARE STAFF WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF ENVISIONWARE PINPAL, AS SET FORTH BELOW.
11.2 Limitation of Liability. IN NO EVENT SHALL ENVISIONWARE, ITS AFFILIATES, ITS LICENSORS OR ENVISIONWARE STAFF BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE ENVISIONWARE PINPAL, EVEN IF ENVISIONWARE, ITS AFFILIATES OR ENVISIONWARE STAFF HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 Remedy. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH ENVISIONWARE PINPAL IS TO DEINSTALL AND CEASE USE OF SUCH ENVISIONWARE PINPAL.
11.4 Jurisdiction’s Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event the liability will be limited as far as legally possible under the applicable legislation.
Article 12 General Provisions
12.1 New versions of the Agreement. EnvisionWare reserves the right to modify this Agreement at any time by providing such revised Agreement to You or by publishing the revised Agreement on EnvisionWare Website. The revised Agreement shall become effective within thirty (30) days of such publishing or provision to You, unless You expressly accept the revised Agreement earlier by clicking on the accept button. The express acceptance by You, or Your continued use of EnvisionWare PINPal after expiry of the notice period of thirty (30) days, shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. EnvisionWare reserves the right to make changes to this Agreement from time to time.
12.2 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between You and EnvisionWare with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
12.3 Partial Invalidity. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.
12.4 No waiver. The failure of EnvisionWare at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by EnvisionWare.
12.5 No Assignment by You. You are not allowed to assign this Agreement or any rights hereunder.
12.6 Assignment by EnvisionWare. EnvisionWare is allowed at its sole discretion to assign this Agreement or any rights hereunder to any Affiliate, without giving prior notice.
12.7 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the United States of America without giving effect to any conflict of laws or provisions whether contained in U.S. law or the laws of your current state or country of residence.
12.8 Competent Court. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the district of Duluth, Georgia, USA.
12.9 Language. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall prevail.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL ENVISIONWARE PINPAL, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO ENVISIONWARE THE RIGHTS SET FORTH HEREIN.
