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Affiliate : means any entity that directly or indirectly controls, is controlled by, or is under common control with you. Contractor : means those independent third parties who perform services related to this Agreement for you, but solely to the extent they are acting on your behalf.

Documentation : means any supporting product help and technical specifications documentation provided by Seagull Scientific with the Software to you.

Documentation does not include white papers, community forums, training videos, tutorials, Knowledge Base articles or other similar resources which may be made available for your convenience. License Certificate : means the document from Seagull Scientific that includes your Product Key Code that you receive after your order is fulfilled.

Each License Certificate you receive shall be deemed a part of this Agreement. The License Term may be a fixed term, a perpetual term or a limited term for certain editions. Personal Data : Personal data is any information that relates to an identified or identifiable living individual or recognized legal entity. Different pieces of information, which collected together can lead to the identification of a particular person or entity, also constitute personal data.

Printed Item s : Each discrete printed item is counted as one 1 printed item. For example, if content is merged into a template to generate one or more pages where each page contains multiple labels, each label on each page is counted as one 1 printed item.

Similarly, if content is merged into a template to generate one or more pages of a pdf file, such as receipts, tags, invoices or packing slips, each discrete item on each individual page is counted as one 1 printed item.

Software : means the proprietary Seagull Scientific software provided in connection with this Agreement in either Source Code or machine code form or as otherwise specified in any related License Certificate , as more fully described in the Documentation.

Source Code means any collection of code, with or without comments, written using a human-readable programming language, usually as plain text. The source code of a program is specially designed to facilitate the work of computer programmers, who specify the actions to be performed by a computer mostly by writing source code. The source code is often transformed by an assembler or compiler into binary machine code that can be executed by the computer.

The machine code might then be stored for execution at a later time. Alternatively, source code may be interpreted and thus immediately executed. All undefined names of Software Products have the meanings given to them in the Documentation. User Content : means any data, email address, file attachments, text, images, reports, personal information, or other content that is uploaded or submitted to the online Portal by you and is processed by Seagull Scientific on your behalf.

Except as set forth herein, any terms which apply to a Software Product also apply to any updates and upgrades to that Software Product. Your registration information must be accurate, current, and complete. You must keep your registration current so that we may send notices about your Software Product, our Maintenance and Support Agreement, service releases, statements, and other information to you by email or through your account.

Seagull Scientific Software will only license such use as expressed in Usage Metrics determined by the type of license you have either purchased or, in the case of an Evaluation Edition, for which you have been granted a license by Seagull Scientific or an Authorized Partner. Data Collection. No data is collected about User Content, e. No Personal Data is collected in a manner to correlate with any identified individual or recognized entity.

Seagull Scientific may collect data that is not Personal Data, e. You may view the data Seagull Scientific collects and how we may use it on our website. Software Product that may be licensed to you for as long as you comply with the terms of this Agreement, as it may be modified from time to time. Software Product that allows you to use the Software Product for a specified license term provided you comply with the terms of this Agreement, as it may be modified from time to time. The following Software Products are available on a subscription license: Pro; Automation; and, Enterprise.

Evaluation License. When your license is based on the maximum number of printers used in each 7-Day Period. A usage shall mean use to print a template from a BarTender Software Document BTW file directly to that printer, or to create a PDF or similar type of data stream that is subsequently sent to print at that printer.

While the BarTender Licensing Service attempts to monitor the printer count and license compliance, it is your responsibility to ensure that you are licensed for the actual number of printers being used. The total number printers licensed to use your Software Product must not, in a 7-Day Period, exceed the number of licenses purchased on the applicable License Certificate s or received by you from Seagull Scientific, including to the extent applicable, across all production and non-production environments.

When BarTender Software is used to generate electronic documents such as PDF files, licensing is based on the number of items printed per week, with each printer license granting the right to generate up to 2, Printed Items per week. While the BarTender Licensing Service attempts to monitor the number of items printed per week and license compliance, it is your responsibility to ensure that you print no more than 2, items per week per printer license.

The total number of Printed Items printed in a week must not, in a 7-Day Period, exceed 2, per printer license, including to the extent applicable, across all production and non-production environments. While the BarTender Licensing Service attempts to monitor the volume of printed labels in a specific timeframe, it is your responsibility to accurately count the number of labels printed, including to the extent applicable, across all production and non-production environments, in accordance with the terms of the applicable License Certificate s and appropriately pay Seagull Scientific for the correct label volume.

The only supported way you may configure a redundant BarTender License is by using the redundancy features built into the Enterprise Edition. Any other method of cloning, copying or duplicating an installed instance of the BarTender Licensing Service, whether on a physical computer or virtual server, in a manner that allows it to support a duplicate of a PKC already in use by another instance of the BarTender Licensing Service is prohibited.

A redundant BarTender Licensing Service may be operational only when the primary site is nonoperational. Except for system maintenance and updating of databases, the redundant Software Product installation s shall remain dormant while the primary site or any other redundant site is operational.

You may install and use the Trial license solely for the purpose of evaluating the Software Product to determine whether to purchase the Software Product. You may not use the Trial license for any other purposes, including but not limited to competitive analysis, commercial, professional, or for-profit purposes.

Unless you pay the applicable license fee for the Software Product following which Seagull Scientific will remove the Evaluation Period time limitation from your PKC , the Trial license will become inoperable at the end of the Evaluation Period. The aforementioned prohibition against competitive analysis in Section 2. You may use an NFR license to print labels for commercial or for-profit purposes.

Software Product may become inoperable upon termination. Subject to all of the terms and conditions of this Agreement, and except as set forth in Section 6 Term and Termination , during the applicable License Term, Seagull Scientific grants you a limited, non-transferable, non-sublicensable, non-exclusive license to use the Software Product for which you have been issued a PKC by Seagull Scientific or an Authorized Partner, but only in accordance with: a the Documentation; b the restrictions in Section 2 Seagull Scientific Software Products , Section 2.

You may allow your Contractors and Affiliates to use the Software Product in accordance with this Agreement, provided you shall remain liable for all acts and omissions of your Affiliates and Contractors as if their acts or omissions were your own. You assume full responsibility for the selection of the Software Product to achieve your intended results, and for the installation, use, and results obtained from the Software Product. Unless otherwise specifically provided in your License Certificate, Seagull Scientific does not grant you permission to modify any Software whether in the form of source code or machine code of the Software provided by Seagull Scientific to you under any circumstances.

You are entitled to make copies of the Software for back-up or archival purposes. Open Source Software may be identified in the Documentation, or in a list of the Open Source Software provided to you upon your written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.

Regardless of Delivery method, this Agreement applies in its entirely to the whole or to individual separated fragments of the delivered Software. Electronic Delivery. All Software and Documentation shall, by default, be delivered by electronic means.

Physical Media Delivery. Upon your written request and for a fee, you may receive the Software and Documentation on physical media. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Seagull Scientific and its licensors have and will retain all rights, title and interest including, without limitation, all intellectual property rights in and to the Software Product, Source Code, Machine Code, and all copies, modifications and derivative works thereof including any changes which incorporate any of your ideas, feedback or suggestions.

All other trademarks are the property of their respective owners. Whether you purchased a license to use the Software Product from a Seagull Scientific Authorized Partner or from Seagull Scientific directly, you shall pay all fees associated with the Software Product license and any services purchased hereunder as set forth in the applicable License Certificate.

Except as expressly set forth herein, all fees are non-refundable once paid. In the event you do object to any modification of the EULA as expressed above, to terminate use, you must promptly notify Seagull Scientific of your termination in writing and express the nature of the objection to the modified EULA.

Failure to notify Seagull Scientific shall be deemed continued use and acceptance of the modified EULA for which fees will continue to accrue in accord with the relevant license.

Unless you provide, in a timely manner, your Authorized Partner or Seagull Scientific with a valid certificate of exemption or other evidence that items are not taxable, your invoice will include all applicable bank fees and taxes including, but not limited to, VAT, GST, sales tax, consumption tax and service tax.

If you purchased a Perpetual License, unless sooner terminated as provided herein, you are granted the right to use your perpetual license in perpetuity. If you purchased a Subscription License, unless sooner terminated as provided herein, your subscription license to the Software Product expires at the end of the applicable License Term. License Terms may be renewed in a License Certificate or as otherwise mutually agreed by the parties. Terms vary by edition and are described above in sections 2.

Seagull Scientific may terminate this Agreement including all related License Certificates : a if you fail to cure any material breach of this Agreement within thirty 30 days after written notice of such breach including without limitation your failure to pay, expiration of the term, and termination shall occur immediately upon Seagull Scientific becoming aware that you have committed any breach of Section 2.

Unless otherwise specified herein, termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Upon any expiration or termination of this Agreement, you shall cease any and all use of any Software Product and immediately pay any outstanding fees due hereunder.

Sections 2. After the Warranty Period, Seagull Scientific does not warrant that your use of the Software Product will be uninterrupted or error-free or that any security mechanisms implemented by the Software Product will not have inherent limitations. After the Warranty Period, Seagull Scientific will use its best efforts to resolve the reported nonconformity of the Software Product. The above warranty shall not apply: a if the Software Product is used with hardware or software not authorized in the Documentation; b if any modifications are made to the Software Product by you or any third party; c to defects in the Software Product due to accident, abuse or improper use by you; d to any Trial license, NFR license or other Software Product provided as a beta, preview or an evaluation basis.

Support and Maintenance. Limitation of Remedies; Indemnification and Damages. Export Compliance. You acknowledge that the Software Product is subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your download of, access to, and use of the Software Product.

You shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Software Product or any direct product thereof: a into or to a national or resident of any embargoed or terrorist-supporting country; b to anyone on the U.

You represent and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Software Product for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.

This Agreement will bind and inure to the benefit of the parties and your respective successor s and permitted assign s. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

Excluding conflict of laws rules, this Agreement shall be governed by and construed under the laws of the State of Washington, USA. Should any legal action be necessary between the parties such legal action shall be filed in Bellevue, Washington, USA.

The prevailing party in any litigation arising out of this Agreement shall be entitled to be reimbursed for all attorney’s fees, expense, and associated costs. If any provision of the Agreement shall be held to be invalid, illegal, or unenforceable, the remaining provisions shall nevertheless be given full force and effect. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.

Any notice or report hereunder shall be in writing or in electronic format. If to Seagull Scientific by email, such notice or report shall be sent to: legal SeagullScientific. If to you, such notice or report shall be sent to the mailing or email address you provided upon placing your order.

 
 

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