BIT MIRACLE END USER LICENSE AGREEMENT
IMPORTANT: READ CAREFULLY: This End User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Bit Miracle for the materials accompanying this EULA, which may include computer software, associated media, printed materials, and "on line" or electronic documentation ("Software") and source files, resource files, project and solution files ("Source Code") for Software, collectively "The Product".
BY INSTALLING, DOWNLOADING, COPYING OR OTHERWISE USING THE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL, DOWNLOAD, COPY OR USE THE PRODUCT.
The Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Bit Miracle or its suppliers own the title, copyright and other intellectual property rights in The Product. The Product is licensed, not sold.
a. "Application Programming Interface" or "API" means a publicly accessible interface defining the ways by which an application program may request services from libraries and/or software.
b. "Software as a Service" or "SaaS" means a model of software deployment whereby a provider licenses an application to customers for use as a service on demand.
c. "Server product" means the software of a type that is designed to function as a server (including SaaS) and thereby provide data over the internet or any kind of network or multi-user environment.
d. "End User Application" means the software of a type that is designed to be used on a workstation computer by a final user to perform a function or type of work.
e. "Software Development Kit" or "SDK" means a set of development tools that allows a software engineer to create applications for a certain software package, software framework, hardware platform, computer system, video game console, operating system, or similar platform.
f. "You" are the person or organization licensing The Product and are accordingly, the Licensee in respect of it.
g. "Link to" means The Product is linked in binary form to a software product and is required by the build process of that software product to build successfully.
h. Source Code is the mnemonic, high-level statement versions of The Product written in the source language used by programmers.
2. GRANT OF LICENSE. Bit Miracle grants you the rights described in this EULA provided that you comply with all the terms and conditions of this EULA:
a. General Software License Grant. Bit Miracle grants use of The Product according to one of the license types below as identified in The Product title.
i. Evaluation License. The Evaluation License is a non-exclusive evaluation license to use The Product for evaluation purposes only. With the Evaluation License The Product is fully functional for a limited number of days. The exact number of days is to be decided by Bit Miracle in for each Evaluation License. When using the Evaluation License The Product may be installed for internal evaluation purposes only and MAY NOT be used outside of a development environment. Any violation of this provision shall require a mandatory purchase of any required license, as well as expose the user to other legal recourse for collection and punitive damages. If you do not agree to these terms, do not evaluate The Product and remove it from your computer immediately.
ii. Ultimate License. This Licenses grants You non-transferable and non-exclusive right to link The Product to End User Applications, Server Products and Cloud Solutions developed, marketed and distributed by You and distributed either within your organization or to third parties.
b. General Source Code License Grant. If Source Code accompanies The Product, Bit Miracle grants to you one (1) personal, non-transferable, non-exclusive, royalty-free license to make and use copies of the Source Code and install such Source Code on any number of your computers (i) for your internal use , (ii) to design, develop and test your software products. You may not redistribute the Source Code, or any component thereof, whether modified or not to any third party.
c. Documentation. With respect to electronic and other documentation, you may make any number of copies (either in hard copy or electronic form) provided that such copies shall be used only for internal purposes and are not republished or distributed externally.
d. Disassembly. You may not reverse engineer, decompile, disassemble or in any other way try to gain access to information regarding the construction of The Product.
e. Reservation of Rights. Bit Miracle reserves all rights not expressly granted herein.
3. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
a. Derived Works and Redistribution
i. The Product may not be distributed in any form that allows it to be reused by any application other than your derived work. The Product may not be included as part of an SDK. The Product may not be used to develop derived works that offer similar functionality as The Product, or expose features of The Product through an API for use by an unlicensed third party.
ii. The Product may not be used to develop derived works that offer similar functionality as The Product for any development platform, including but not limited to: .NET, .NET Core, .NET Standard, Microsoft Azure, Mono or MonoTouch, Xamarin.
iii. Bit Miracle is not obligated to provide support for works derived from The Product.
iv. Distribution of the Source Code in any form, with or without modifications, is strictly prohibited.
v. Works derived from The Product may not be called "Bit Miracle" and/or "Jpeg2000.Net", nor may "Bit Miracle" and/or "Jpeg2000.Net" appear in their names, without prior written permission from Bit Miracle.
vi. The names "Bit Miracle" and/or "Jpeg2000.Net" must not be used to endorse or promote products derived from The Product without prior written permission. For written permission, please contact email@example.com.
b. Rental. You may not rent, lease, or lend The Product without express written permission from Bit Miracle.
c. Termination. Without prejudice to any other rights, Bit Miracle may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of The Product, including but not limited to the Source Code, backups and all of its component parts and derived works.
d. Consideration. For the rights and license granted in this EULA, including both the General Software License and the General Source Code License, you will pay Bit Miracle the currently published price available at bitmiracle.com or another mutually agreed upon amount to appear on a valid invoice.
e. Term. The term of this EULA shall continue perpetually from the date of purchase unless terminated according to the provisions in Section 3(c).
f. Consent to Use of Data. You agree that Bit Miracle and its affiliates may collect and use technical information, excluding any confidential information, gathered as part of The Product support services provided to you, if any, related to The Product. Bit Miracle may use this information solely to improve our products or to provide customized services or technologies to you. Bit Miracle may disclose this information, excluding any information explicitly declared as confidential information, to others but not in a form that personally identifies you.
4. SOFTWARE MAINTENANCE, UPDATES AND DISCONTINUATION.
a. A purchase of The Product entitles the purchaser to updates of The Product for a period of one (1) year (365 days) following the purchase.
c. Bit Miracle reserves the right to discontinue The Product at any time, whether it is offered individually or as a part of a product suite.
d. If for any reason Bit Miracle decides to discontinue The Product they will provide the following remedy to each license owner:
i. Bit Miracle will make a reasonable effort to notify you in writing at least fifteen (15) days prior to the discontinuation of The Product, and you will be provided with The Product Source Code.
e. If for any reason, including insolvency or dissolution, Bit Miracle is unable to remain in business they will provide the following remedy to each license owner:
i. Bit Miracle will make a reasonable effort to notify you at least thirty (30) days prior to close of business, and you will be provided with The Product Source Code for The Product you own licenses for.
5. SOFTWARE DELIVERY. The Product and any associated materials are provided in electronic format only. You are responsible for downloading The Product from the Bit Miracle website: https://bitmiracle.com. Upon purchase Bit Miracle shall deliver to you an electronic license key which will enable The Product to function in the purchased license capacity.
6. UPGRADES. If this copy of The Product is an upgrade from an earlier version of The Product, it is provided to you on a license exchange basis. You agree by your installation and use of such copy of The Product to voluntarily terminate your earlier EULA and that you will not continue to use the earlier version of The Product or transfer it to another person or entity unless such transfer is otherwise valid according to the terms of this EULA.
7. INTELLECTUAL PROPERTY RIGHTS. All title and intellectual property rights in and to The Product (including but not limited to any images, photographs, animations, video, audio, music and text incorporated into The Product and any copies of The Product that you are expressly permitted to make herein) are owned by Bit Miracle or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of The Product are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content. All title and intellectual property rights in and to your modifications to The Product, are owned by you provided that such modifications are made available to Bit Miracle free of charge and royalty-free for inclusion in later releases of The Product. All rights not expressly granted are reserved by Bit Miracle.
8. NONDISCLOSE AND NONCOMPETITION.
a. Both parties recognize that the other party may obtain proprietary and/or confidential information ("Confidential Information") in the course of the business relationship defined herein. Each party therefore agrees that it will not disclose the Confidential Information of the other party to any third party (i) except as provided for in this EULA or as necessary to pursue and implement the business relationships defined herein; (ii) to its responsible employees and professional advisors with a bona fide need to know and whom are bound by agreement or law to keep such information confidential; (iii) as authorized by the other party in writing or (iv) to the extent required by applicable law, court, or government agency, provided that the receiving party promptly notifies the disclosing party thereof and cooperates with any efforts by the disclosing party, at the disclosing party's expense, to limit such disclosure by means of seeking a protective order or requesting confidential treatment.
b. The parties agree that any party that violates this Section 8 shall pay, liquidated damages of no less than four (4) times the purchase price or five thousand dollars ($5,000.00 USD) whichever is more if any violation of this Section 8 is proved in a court of law or admitted plus any direct, indirect, or actual damages.
9. LIMITED WARRANTY AND DISCLAIMER.
a. Except with respect to an evaluation version of The Product, Bit Miracle warrants that, for a period of thirty (30) days from the date of delivery (as evidenced by a copy of your receipt) when used with a recommended hardware configuration, The Product will perform in substantial conformance with the documentation supplied with The Product.
b. BIT MIRACLE PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR EVALUATION VERSIONS OF THE PRODUCT. THE EVALUATION VERSION OF THE PRODUCT IS PROVIDED "AS IS".
c. BIT MIRACLE AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BIT MIRACLE DOES NOT WARRANT THAT THE PRODUCT IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. THE PRODUCT IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. BIT MIRACLE SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
d. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE PRODUCT, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.
e. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BIT MIRACLE, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
10. EXCLUSIVE REMEDY. Your exclusive remedy under the preceding is to return The Product to the place you acquired it, with a copy of your receipt and a description of the problem. Provided that any non-compliance with the above warranty is reported in writing to Bit Miracle no more than thirty (30) days following delivery to you, Bit Miracle will use reasonable commercial efforts to supply you with a replacement copy of The Product that substantially conforms to the documentation or refund to you your purchase price for The Product, at its option. Bit Miracle shall have no responsibility if The Product has been altered in any way or if the failure arises out of use of The Product with other than a recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of The Product will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCT.
11. LIMITATION OF LIABILITY.
a. Except with regard to: (i) breach of confidentiality obligations; and (ii) any costs associated with the defense, chosen by Bit Miracle, and settlement, to the infringed upon party, of an intellectual property right claim.
b. NEITHER BIT MIRACLE NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE PRODUCT AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF BIT MIRACLE OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
c. BIT MIRACLE'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES, FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT CAUSED SUCH DAMAGE.
d. THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.
12. INDEMNITY. You agree to hold Bit Miracle harmless against, and at your expense handle and defend, any claim and defend any third party suit brought against you based upon an allegation that any software developed by you and included in derived works produced using The Product constitutes an infringement of any international patent, or any copyright or other proprietary or intellectual property right. You shall pay all damages and costs awarded in such suit. Bit Miracle will indemnify, defend and hold you, and/or your and/or its affiliated and/or subsidiary companies harmless against any claims, legal actions, losses and other expenses arising out of or in connection with any claims that The Product and/or related documentation infringes or violates any intellectual property right of any third party ("Claim"), on the condition that you notify Bit Miracle promptly of the Claim and give Bit Miracle sole control of the defense and negotiations for its settlement or compromise. If you become, or may become, prohibited from continued use of the Software and/or The Product by reason of an actual or anticipated Claim, Bit Miracle will use its reasonable efforts to
a. obtain for you the right to use the Software and/or The Product, or
b. replace or modify such Software and/or The Product so that it is no longer subject to a Claim, but performs the same functions in an equivalent manner.
c. In the event that Bit Miracle determines, in its sole discretion, that neither (a) nor (b) is commercially reasonable, Bit Miracle shall refund the residual value of the license fees paid by you for the infringing Product or Software, depreciated using a straight line method of depreciation over a forty-eight month period from the date of delivery of The Product to you.
13. TAXES. The license fees and any other amounts payable pursuant to the terms and conditions herein are exclusive of all national, state, regional, local municipal or other taxes and fees including, but not limited to, excise, sales, use, property, ad valorem, intangibles, goods and services and value added taxes, customers duties and registration fees, now in force or enacted in the future, and all such taxes and fees, except taxes based on Bit Miracle's net worth, capital or net income, shall be paid directly by you, or if paid by Bit Miracle, you will reimburse Bit Miracle.
14. NO WAIVER. No action taken by either party pursuant to this EULA, and no waiver by either party, whether express or implied, of any provision or right in this EULA or any breach thereof, and no failure of either party to exercise or enforce any of its rights under this EULA, will constitute a continuing waiver with respect to such provision or right or as a breach or waiver or any other provision or right, whether or not similar.
15. SEVERABILITY. If any covenant or provision of the EULA is determined to be void or unenforceable in whole or part, then such void or unenforceable covenant or provision shall be deleted from this EULA and shall not effect or impair the enforceability or validity of any other covenant or provision of this EULA or any part thereof.
16. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the Russian Federation. Any dispute, controversy or claim arising out of this Agreement or relating to it, that cannot be resolved through discussion and consultation among the representatives of the parties, shall be referred to the final settlement to The International Commercial Arbitration Court at the RF Chamber of Commerce and Industry in Moscow, Russian Federation, in conformity with the Rules of the above Court. The arbitration shall be conducted in the Russian language.
17. FURTHER INSTRUMENTS. Except as otherwise expressly provided in this Agreement, each party shall furnish to the other (and shall deliver and cause to be executed, acknowledged and delivered to the other) any further instruments, which such other party may reasonably require or deem necessary from time to time to evidence, establish, protect, enforce, defend or secure to such other party any or all of its rights hereunder or to more effectuate or carry out the purposes, provisions or intent of this Agreement.
18. CAPTIONS. All indexes, titles, subject headings, section titles, and similar items are provide for the purpose of reference and convenience and are not intended to be inclusive, definitive, or to affect the meaning or scope of this Agreement.
19. UPDATES. Bit Miracle may make updates and changes to this license agreement from time to time. Such changes will be posted on our website at https://bitmiracle.com. Such changes or updates will become effective immediately. It is your responsibility to check the website for updates. If this EULA is provided with The Product installer, please visit our website to ensure have the most recent agreement. If you elect not to be bound by the new license agreement you must immediately destroy all copies of The Product and inform Bit Miracle in writing within sixty (60) days of posting.
20. ENTIRE AGREEMENT. This EULA is the entire agreement between you and Bit Miracle relating to The Product and the support services (if any) and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to The Product or any other subject matter covered by this EULA. To the extent the terms of any Bit Miracle policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control.