Auctane Downloadable Software End User License Agreement

Please read this Auctane Downloadable Software End User License Agreement (this “EULA“) carefully before downloading, installing, accessing or using any software downloaded from or linking to this page or an accompanying a readme file with this EULA (collectively with any Updates (defined below) “Software”).

This EULA is a binding agreement between Auctane, Inc. and its affiliates (“Licensor” or “Auctane”) and you and any organization or other entity on whose behalf you accept the terms and conditions in this EULA (collectively “You”, “Your” or “Licensee“).

LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM.

IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SOFTWARE.

BY CLICKING A BOX INDICATING ACCEPTANCE OF THIS EULA OR DOWNLOADING, INSTALLING, ACCESSING OR USING THE SOFTWARE, YOU (1) ACCEPT THIS EULA AND AGREE THAT LICENSEE IS LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS EULA; AND (2) REPRESENT AND WARRANT THAT: (A) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (B) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF LICENSEE AND BIND LICENSEE TO THE TERMS AND CONDITIONS OF THIS EULA.

IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD, INSTALL, ACCESS OR OTHERWISE USE THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS EULA OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA:

1. NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS EULA, AND THIS EULA EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT DOWNLOAD, INSTALL, ACCESS, USE OR OTHERWISE ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE; AND
2. YOU SHALL NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SOFTWARE WITHOUT THE PRIOR WRITTEN CONSENT OF AUCTANE IF YOU ARE OR BECOME A DIRECT COMPETITOR OF AUCTANE OR ANY OF ITS AFFILIATES.
1. Definitions. For purposes of this EULA, the following terms have the following meanings:

“Authorized Users” means solely those individuals authorized to use the Software pursuant to the license granted under this EULA.

“Documentation” means Licensor’s user manuals, handbooks, and installation guides relating to the Software provided or otherwise made available by Licensor to Licensee either electronically or in hard copy form.

“Feedback” means any comments, suggestions, know-how, ideas, improvements, or other feedback regarding the Software or Documentation.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Licensor generally makes available free of charge to all licensees of the Software.

1. License Grant and Scope. Subject to and conditioned upon Licensee’s compliance with all terms and conditions set forth in this EULA, Licensor hereby grants Licensee a limited, non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(e)), revocable license, during the Term and solely by and through its Authorized Users, to:
1. a. Download and install in accordance with the Documentation one (1) copy of the Software on computers owned or leased, and lawfully controlled by, Licensee for Licensee’s own internal business purposes. In addition to the foregoing, Licensee has the right to make one copy of the Software solely for archival purposes and one copy of the Software solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as the copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Licensee uninstalls and otherwise deletes such inoperable copies. All copies of the Software made by the Licensee:
  1. 1. will be the exclusive property of the Licensor;
  2. 2. will be subject to the terms and conditions of this EULA; and
  3. 3. must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
2. b. Use and run the Software as properly installed in accordance with this EULA and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes.
3. c. Download or otherwise make one (1) copy of the Documentation and use such Documentation, solely in support of its licensed use of the Software in accordance hereunder. All copies of the Documentation made by Licensee:
  1. 1. will be the exclusive property of Licensor;
  2. 2. will be subject to the terms and conditions of this EULA; and
  3. 3. must include all Intellectual Property Rights notices contained in the original.

Licensor may modify, upgrade or otherwise update the Software at any time.

Under this EULA, Licensor may provide support or maintenance including provision of Updates (“Support”) for the Software but has no obligation to furnish such support to You and may cease to offer Support at any time without notice. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this EULA. Licensee acknowledges that Licensor may provide any or all Updates through download from a website designated by Licensor and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Licensor has no obligation to provide Updates via any other media. Support does not include any new version or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.

In the event You elect to communicate to Auctane any Feedback, Auctane will own, exclusively and solely, all right, title, and interest (including all intellectual property and other proprietary rights) in and to the same including if You have designated the Feedback as confidential. Auctane will be entitled to use the Feedback without restriction or further compensation to You. You hereby irrevocably assign all right, title and interest (including all intellectual property and other proprietary rights) in and to the Feedback to Auctane and will provide such assistance as Auctane may request in order to document, perfect, and maintain its rights in and to the Feedback.

1. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
1. a. use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
2. b. provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;
3. c. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
4. d. combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
5. e. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
6. f. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
7. g. except as expressly set forth in Section 2(a) and Section 2(c), copy the Software or Documentation, in whole or in part;
8. h. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any third party (including any Person other than Licensee or Licensor) for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, service bureau, software as a service, cloud, time-sharing, wide area network, virtual private network, virtualization, or other technology or service;
9. i. use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including:
  1. 1. power generation systems;
  2. 2. aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;
  3. 3. safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and
  4. 4. military or aerospace applications, weapons systems, or environments;
10. j. use the Software or Documentation in violation of any applicable law, regulation, or rule; or
11. k. use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is or could be commercially disadvantageous to Licensor.
2. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly, including all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software or Documentation, whether such access or use is permitted by or in violation of this EULA.
3. Security and Copy Protection Features.
1. a. The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 3. Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
4. Collection and Use of Information.
1. a. Licensee acknowledges that Licensor may, directly or indirectly, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through:
  1. 1. the provision of Support; and
  2. 2. security measures included in the Software as described in Section 5.
2. Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:
  1. improving the performance of the Software or developing Updates; and
  2. verifying Licensee’s compliance with the terms of this EULA and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.
5. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this EULA, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this EULA. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of, in connection with or relating to the Software, except as expressly granted to the Licensee in this EULA. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.
6. Term and Termination.
1. a. This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term“).
2. b. Licensee may terminate this EULA by ceasing to use and destroying all copies of the Software and Documentation.
3. c. Licensor may terminate this EULA, effective upon written notice to Licensee, if Licensee, breaches this EULA and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured five (5) days after Licensor provides written notice thereof.
4. d. Licensor may terminate this EULA, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
5. e. Upon expiration or earlier termination of this EULA, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation.
7. Warranty Disclaimer.
1. a. THE SOFTWARE, DOCUMENTATION AND SUPPORT ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND SUPPORT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE, DOCUMENTATION OR SUPPORT WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
8. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
1. a. IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, CONSULTANTS, SUCCESSORS, LICENSORS, SERVICE PROVIDERS, ASSIGNS, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY “REPRESENTATIVES”), BE LIABLE TO LICENSEE OR ANY OF ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE REPRESENTATIVES OR ANY OTHER THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION OR SUPPORT; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER RELATING TO, ARISING OUT OF OR IN CONNECTION WITH THIS EULA , THE SOFTWARE, DOCUMENTATION OR SUPPORT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. b. IN NO EVENT WILL LICENSOR’S OR ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE REPRESENTATIVES’ COLLECTIVE AGGREGATE LIABILITY RELATED TO, UNDER OR IN CONNECTION WITH: THIS EULA OR ITS SUBJECT MATTER, ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE LESSER OF US$10.00 OR THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS EULA FOR THE SOFTWARE, DOCUMENTATION OR SUPPORT THAT IS THE SUBJECT OF THE CLAIM.
3. c. THE LIMITATIONS SET FORTH IN SECTION 10(a) AND SECTION 10(b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS EULA FAIL OF THEIR ESSENTIAL PURPOSE.
9. Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
10. Miscellaneous.
1. a. All matters arising out of, in connection with or relating to or relating to this EULA shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of, in connection with or relating to this EULA or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Texas in each case located in the City of Austin, and each party irrevocably submits to the [non-]exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
2. b. In no event shall Licensor be liable to Licensee, or be deemed to have breached this EULA, for any failure or delay in performing its obligations under this EULA, if and to the extent such failure or delay is caused by any circumstances beyond Licensor’s/such Party’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, hurricane, tornado, natural disaster, pandemic or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this EULA; and (vi) national or regional emergency;(vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities.
3. c. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses as may be designated by a party from time to time in accordance with this Section 12(c)).
4. d. This Agreement and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
5. e. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this EULA, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this EULA for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this EULA. Any purported assignment, delegation, or transfer in violation of this Section 12(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this EULA without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
6. f. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this EULA.
7. g. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this EULA, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this EULA shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
8. h. If any term or provision of this EULA is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this EULA or invalidate or render unenforceable such term or provision in any other jurisdiction.
9. i. For purposes of this EULA, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this EULA as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
10. j. The headings in this EULA are for reference only and do not affect the interpretation of this EULA.