IMPORTANT! CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS SET FORTH IN THIS END-USER LICENSE AGREEMENT ("EULA"). FASTEST, INC. LICENSES SOFTWARE AND RELATED MATERIAL ONLY ON THE CONDITION THAT LICENSEE ACCEPTS ALL THE TERMS CONTAINED OR REFERENCED IN THIS AGREEMENT.
This EULA is a binding legal agreement between the entity for which you are authorized to represent (hereinafter "Licensee") and FastEST, Inc. for materials accompanying this EULA, including the accompanying computer software, associated media, printed materials, "online" or electronic documentation, and any upgrades, modified versions, updates, additions, and copies thereof (hereinafter the "Software"). The term "Software" also includes third-party products and related documentation, and any upgrades, modified versions, updates, additions, and copies thereof. By selecting the “Accept” button, or by installing, downloading, accessing, copying, or otherwise using all or any portion of the Software, you acknowledge that the entity you represent is legally bound by the terms of this EULA and agree to act in a manner consistent with this EULA. You also acknowledge and agree that a third-party licensor is the owner of certain proprietary information and intellectual property rights included in the Software. Such third-party licensors are third-party beneficiaries entitled to enforce FastEST, Inc. rights and Licensee obligations hereunder and to seek appropriate legal and equitable remedies, including, but not limited to, damages and injunctive relief, for Licensee breech of such obligations. If there is no such entity for which you are authorized to represent, then you accept this EULA on behalf of yourself as an individual and acknowledge that you are legally bound by the terms of this EULA as the Licensee. You may not accept this EULA on behalf of another entity unless you are an employee or other agent of such other entity with the right, power and authority to act on behalf of such other entity. If you (or the other such entity) do not agree to the terms of this EULA, do not install or attempt to use the Software. Cancel the installation now and return the full product to FastEST, Inc. within 30 days for a full refund. The effective date of this agreement is the day you install, download or otherwise use any materials associated with the Software.
"Application" means a specific named application included with the Software (including, but not limited to, FastPIPE®, FastDUCT® or FastWRAP™).
"Authorized User" means an employee, contractor, or agent of Licensee authorized by Licensee to use the Software.
"Computer" means a single computer, workstation or terminal.
“Concurrent Authorized Users” means one or more Authorized Users who use an Application at the same time.
"FastEST, Inc. Website" means fastest-inc.com.
"Feature Set" means specific sets of capabilities within an Application that may be subject to separate or additional License Fees.
"License Fee" means the applicable fee for which Licensee pays to license the Software and is based on the specific License Type, Applications, Feature Sets, License Term, or Maximum Concurrent Authorized Users.
"License Term" means the term for which the Licensee has licensed use of the Software and may be perpetual or fixed term.
"License ID" means a set of unique characters issued by FastEST, Inc. that identifies a specific license.
"License Type" means a type of license issued by FastEST, Inc. having specific restrictions on installation and use.
“Licensed Software” means the specific software licensed to Licensee under the terms of this EULA and identified by a unique License ID issued to Customer, including any updates thereto.
"Maximum Concurrent Authorized Users" means the maximum number of Authorized Users who are allowed to use the Software or specific Applications included with the Software at the same time.
"Third-Party Software" means certain third-party software, data or other materials supplied by third parties that FastEST, Inc. provides access to as part of the Software.
2.1 Intellectual Property Rights. The Software is owned by FastEST, Inc. and its suppliers, and its structure, organization and code are the valuable trade secrets of FastEST, Inc. and its suppliers. The Software is also protected by United States Copyright law and International Treaty provisions. You many not copy the Software, except as provided in this End User License Agreement. Any copies that you are permitted to make pursuant to this EULA must contain the same copyright and other proprietary notices that appear on or in the Software. You agree not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. Except as stated below, this EULA does not grant you any intellectual property rights in the Software.
2.2 License Grant. Subject to and conditioned upon Licensee's continuous compliance with this EULA and payment of any applicable fees, FastEST, Inc. grants Licensee a non-exclusive, non-assignable, non-transferable license (without the right to sub-license) to install and use the Software within the scope of the License Type as described in Section 2.3 (License Types) and in accordance with all other terms of this EULA.
2.3 License Types. FastEST, Inc. shall issue Licensee one or more unique Licenses where each License is identified as a specific License Type and restricted to installation and use as defined in Section 2.2(a) and Section 2.2(b).
a) Station License. If the License is identified as a "Station License", Licensee may install and use one copy of the Software on one (1) Computer and provide access to the Software for Authorized Users provided that the specific Applications, Feature Sets, Maximum Concurrent Authorized Users, and License Term for which Licensee has paid the applicable License Fees are not exceeded.
b) Network License. If the License is identified as a "Network License", Licensee may install and use multiple copies of the Software on multiple Computers and provide access to the Software for Authorized Users provided that the specific Applications, Feature Sets, Maximum Concurrent Authorized Users, and License Term for which Licensee has paid the applicable License Fees are not exceeded.
2.4 Authorized Users. Licensee may only permit the Software to be installed and/or used by Authorized Users and the Licensee is responsible for compliance of all terms of this EULA and shall be liable for any breach of the terms of this EULA by such Authorized Users.
2.5 Third-Party Licensed Materials. The Software may contain or be accompanied by Third-Party Software that is subject to and provided in accordance with terms that are in addition to or different from the terms set forth in this EULA. Such terms may be included or referenced in or with such Third-Party Software. Licensee agrees to comply with such terms. In addition, Licensee will take sole responsibility for obtaining and complying with any licenses that may be necessary to use any Third-Party Software Licensee uses or obtains for use in conjunction with the Software. Licensee acknowledges and agrees that FastEST, Inc. has no responsibility for, and makes no representations or warranties regarding, such Third-Party Software or Licensee’s use of such Third-Party Software.
2.6 Font License. Licensee may embed copies of the font software into electronic documents for purpose of printing, viewing and editing the document. No other embedding rights are implied or permitted under this license.
2.7 Archival Copy. Licensee’s license under Section 2.2 (License Grant) includes the right to make a single archival copy of the Software, provided that (a) the single-copy limitation will not apply to copies made as an incidental part of a routine backup of Licensee’s entire computer system on which the Software is installed in accordance with this EULA, where such backup includes the making of copies of substantially all other software on such computer system and (b) any archival copy may be accessed or installed only when and for so long as the primary copy of the Software is inaccessible and inoperable.
2.8 Nature of Licenses. Licensee acknowledges and agrees that when Licensee acquires a license of Software, Licensee’s acquisition is neither contingent on the delivery of any future features or functionality nor subject to any public or other comments (oral, written or otherwise) made by FastEST, Inc. regarding future features or functionality.
2.9 Replacement, Modification and/or Upgrades. FastEST, Inc. may, from time to time, and for a fee, replace, modify or upgrade the Software. When accepted by Licensee, any such replacement or modified Software or upgrade to the Software will be considered part of the Software and subject to the terms of this EULA (unless this EULA is superseded by a further EULA accompanying such replacement or modified version of or upgrade to the Software).
3 LICENSE LIMITATIONS AND PROHIBITIONS
3.1 No License Granted; Unauthorized Activities. The parties acknowledge and agree that, notwithstanding anything to the contrary in this EULA, no license is granted (whether expressly, by implication or otherwise) under this EULA (and this EULA expressly excludes any right) (a) to any Software that Licensee did not acquire lawfully or that Licensee acquired in violation of or in a manner inconsistent with this EULA, (b) for installation or use beyond the applicable license term or outside the scope of the applicable License Type, (c) for installation or use of the Software on any Computer other than a Computer owned or leased, and controlled, by Licensee, unless otherwise authorized in writing by FastEST, Inc., (d) to distribute, rent, loan, lease, sell, sub-license, transfer or otherwise provide all or any portion of the Software to any person or entity except as expressly set forth in this EULA or as expressly authorized in writing by FastEST, Inc. (e) to provide or make available any features or functionality of the Software to any person or entity (other than to and for Licensee itself for the purpose specified in the applicable License Type), whether or not over a network and whether or not on a hosted basis, (f) except as otherwise expressly provided with respect to a specific License Type, to install or use or allow the installation or use of the Software over the Internet or other non-local network, including, without limitation, use in connection with a wide area network (WAN), virtual private network (VPN), virtualization, Web hosting, time-sharing, service bureau, software as a service, cloud or other service or technology, (g) to remove, alter or obscure any proprietary notices, labels or marks in the Software, (h) to decompile, disassemble or otherwise reverse engineer the Software, or (i) to translate, adapt, arrange, or create derivative works based on, or otherwise modify the Software for any purpose.
3.2 Effect of Unauthorized Use. Licensee will not engage in, and will not permit or assist any third-party to engage in any of the uses or activities prohibited (or any uses or activities inconsistent with the limitations described) in this Section 3.1 (Limitations and Exclusions) (collectively, “Unauthorized Activities”). Any such Unauthorized Activities, and any installation or use of the Software provided under this EULA, outside of the scope of the applicable license grants (including, without limitation, outside the applicable License Type) or otherwise not in accordance with this EULA, constitute or result in infringement of FastEST, Inc.’s intellectual property rights as well as a breach of this EULA. Licensee will notify FastEST, Inc. promptly of any such Unauthorized Activities or other unauthorized installation or use.
3.3 Circumvention. Licensee may not (a) use any equipment, device, software, or other means to circumvent or remove any form of technical protection used by FastEST, Inc. in connection with the Software, or (b) use any equipment, device, software, or other means to circumvent or remove any usage restrictions, including (but not limited to) restrictions on Applications, Feature Sets, Maximum Concurrent Authorized Users and License Term, or (c) install or use the Software with any authorization code, serial number, or other copy-protection device not supplied by FastEST, Inc. directly. Without limitation of the generality of the foregoing, Licensee may not use any equipment, device, software, or other means to circumvent or remove the Registrar Service, Dongle, or any tool or technical protection measure provided or made available by FastEST, Inc. for managing, monitoring or controlling installation and access to the Software.
4. SUPPORT SERVICES
FastEST, Inc. may provide licensee with support services related to the Software, in its discretion. Use of support services, if any, is governed by FastEST, Inc.'s policies and programs described in any user’s manual, in online documentation, and/or other FastEST, Inc.-provided materials. Any supplemental Software code or data provided to Licensee as a part of support services will be considered part of the Software and subject to the terms of this EULA. With respect to technical information Licensee provides to FastEST, Inc. as part of the support services, FastEST, Inc. may use such information for its business purposes, including for product support and development. FastEST, Inc. will not use such technical information in a form that personally identifies Licensee except to the extent necessary to provide Licensee with support.
This EULA is a license of the Software only, and FastEST, Inc. does not assume any obligation to provide maintenance, patches or fixes to the Software. FastEST, Inc. further disclaims any obligation to provide support or to prepare and distribute modifications, enhancements, updates and new releases of the Software.
5. PRICE AND PAYMENT
If Licensee have not previously paid the license fee for the Software, then Licensee must pay the license fee within the period indicated in the applicable invoice sent to Licensee by FastEST, Inc.
6. ALL RIGHTS RESERVED
FastEST, Inc. and its suppliers retain title to and ownership of, and all other rights with respect to, the Software and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights. Licensee has only the limited licenses granted with respect to the Software expressly set forth in this EULA, and Licensee has no other rights, implied or otherwise. Licensee acknowledges and agrees that the Software is licensed, not sold, and that rights to install and use the Software are acquired only under the license from FastEST, Inc.
8. EXPORT RULES
Licensee agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this EULA.
Governing Law. This agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
The Software requires access to data and services that are hosted on the FastEST, Inc. Website. Use of such data and services will cause the Licensee's Computer, without notice, to connect automatically to the Internet (either transitorily, intermittently, or on a regular basis) and to communicate with the FastEST, Inc. Website. Such data and services includes (but is not limited to) registration of the Software, validation that the Software is being used as permitted under this EULA, usage statistics, interactive documentation, and video training materials. Such connectivity to the FastEST, Inc. Website (as well as any data collected) is governed by FastEST, Inc.’s policies on privacy and data protection described in Section 8 (PRIVACY AND USE OF INFORMATION).
10. PRIVACY AND USE OF INFORMATION
Licensee acknowledges and agrees that Licensee (and third parties acting on Licensee’s behalf) may provide, and FastEST, Inc. (and third parties acting on behalf of FastEST, Inc.) may obtain, certain information and data with respect to Licensee (including, without limitation, personal information) in connection with this EULA, including, without limitation, information and data provided to or obtained by FastEST, Inc. (or third parties acting on behalf of FastEST, Inc.) in connection with ordering, registration, activation, updating, validating entitlement to, auditing, monitoring use of and access to the Software, Licensee hereby consents to FastEST, Inc. maintaining, using, storing and disclosing such information and data (including, without limitation, personal information, if any) in conformity with FastEST, Inc.’s policies on privacy and data protection, as such policies may be updated from time to time, including without limitation FastEST, Inc.’s Privacy Statement, as currently located at http://fastest-inc.com/privacy. Licensee acknowledges and agrees that such policies may be changed from time to time by FastEST, Inc. and that, effective upon posting on FastEST, Inc.’s website or other written notice from FastEST, Inc., Licensee will be subject to such changes.
11. DISCLAIMER OF WARRANTIES
FASTEST, INC. AND ITS SUPPLIERS PROVIDE THE SOFTWARE "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, OF QUIET ENJOYMENT, OR OF NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE IS WITH LICENSEE.
12. LIMITATION OF DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FASTEST, INC. OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF FASTEST, INC. OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF DAMAGES WILL BE EFFECTIVE EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Any dispute arising under this EULA will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this EULA will be governed by and construed and interpreted in accordance with the laws of the State of Kansas. The arbitration will be held in Wichita Kansas. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this EULA. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
If any term of this EULA is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this EULA will remain in full force and effect.
15. NO WAIVER
No waiver of any right under this EULA will be deemed effective unless contained in writing signed by a duly authorized representative of the party against whom the waiver is to be asserted, and no waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future rights arising out of this EULA.
16. ENTIRE AGREEMENT
This EULA constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this EULA by any representations or promises not specifically stated herein.