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TERMS AND CONDITIONS
Read this agreement before purchasing or using the software. Ultra Config is willing to license the software to you or the entity you represent that will be licensed to use the software (collectively “you” or “your”) and make available associated support services only if you accept all of the terms of this agreement. You represent and warrant that you have the right, power and authority to act on behalf of and bind the entity that you represent.
You shall have no right to install or use the software or to receive any support services that you may have ordered unless you have ordered from Ultra Config or an Ultra Config-authorized reseller (collectively, an “approved source”), and (ii) you accept all terms of this agreement.
If you do not agree to all terms of the agreement, or if you have ordered the software from someone who is not an approved source, then (a) do not download, install, or use the software or request any support services, and (b) within 30 days after placing your order for the software, return or destroy all copies of the software and request full refund of the software product and support fees from the party that furnished you the software.
By installing or using any software, or by using any support services you will be deemed to have accepted this agreement.
If you and Ultra Config have signed a separate written agreement covering your rights and duties with respect to the software, then that written agreement takes precedence over any conflicting terms of this agreement.
2. END USER AGREEMENT
(January 2019 Release)
This Agreement governs Your rights and duties with respect to Ultra Config software. Capitalized terms used in this Agreement are defined in the DEFINITIONS section.
“Affiliate” means any entity and its successors which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. An entity shall be considered an Affiliate only so long as such entity continues to meet the foregoing definition.
“Agreement” means this End User License Agreement (“EULA”).
“Approved Source” means Ultra Config or an Authorized Reseller.
“Authorized Reseller” means a distributor or reseller authorized by Ultra Config to distribute and resell licenses to the Software in the territory in which You are purchasing such Software license.
“Commercial Cloud Services” means a service offered and administered by Ultra Config, or an authorized third party, whereby You may without downloading or otherwise taking delivery of a copy of the Software use and access instances of Software running in a virtual machine environment resident in a networked cloud facility or group of facilities.
“Ultra Config” refers to the business registered in Australia.
“License Term” means the period of time that the Software is licensed to be Used by You, subject to the terms and conditions of this Agreement.
“Licensed Units” mean a number of units of the Software purchased that limits the Use of the licensed Software.
“SKU” means a stock-keeping unit or unique identifier for each distinct product and service that can be purchased.
“Software” means the software product that may be purchased from Ultra Config.
“Subscription” license means a license to Use the Software with accompanying support services solely during a fixed Subscription Term, unless terminated earlier by Ultra Config pursuant to the terms and conditions of this Agreement.
“Subscription Term” means the duration of time that a Subscription is active.
“Use” means to install, utilize, access, activate, or view the Software.
Subject to the terms and conditions of this Agreement, including, without limitation, this EULA, Ultra Config grants You a non-exclusive and non-transferable license, with no right to grant any sublicense, to Use, solely during the License Term, the Software. Each software update, if any, shall be subject to the same terms and conditions as the Software to which such update pertains.
You may not make any copies of the licensed Software except as reasonably necessary for archival and “cold” back-up purposes, but not for failover or “warm” back-up purposes.
Software that is licensed for “lab”, “classroom”, “trial”, “demo”, redundant, failover, or other non-commercial Uses may not be Used in a production environment.
LICENSE ENTITLEMENT AND ACTIVATION
To purchase the Software, You must register by name as the end-user of the Software with Ultra Config. Ultra Config will email the Subscription Term details to You at the time of purchase. You must provide a designated email address for receipt of your Subscription Term details on the purchase order to Ultra Config. Ultra Config shall not be liable for acts and omissions of the Authorized Reseller, including but not limited to, the Authorized Reseller’s failure to include Your proper email address on the purchase order to Ultra Config.
Licenses or rights to and in the Software that are not expressly granted in this Agreement shall not arise by implication or otherwise and are hereby expressly reserved.
You shall have no right or license in the Software unless You rightfully acquired the Software license from an Approved Source or from Ultra Config directly. Use of the Software may not exceed the Licensed Units for such Software.
You may not sublicense, transfer, or assign, whether voluntarily or by operation of law, any right or license in or to the Software to any other person or legal entity, including an Affiliate. Any such attempted sublicense, transfer, or assignment shall be void.
You may provide access to the Software to Your contractor(s), solely for Your benefit, and only if each such contractor has agreed in writing to adhere to the terms and conditions of this Agreement. You shall remain fully and primarily responsible to Ultra Config and its licensors, if any, for compliance with each and every provision of this Agreement. Except as provided in this section, You may not allow any other third party to Use the Software. In no event shall You allow any third party to have any right to grant any fourth party Use of the Software.
Notwithstanding the foregoing, this Agreement does not constitute a third party beneficiary contract and, unless expressly and specifically stated in this Agreement, shall not be construed to be for the benefit of any person or entity not a party hereto, and no such person or entity shall have any license, right, or claim in connection with this Agreement.
You shall not, directly or indirectly, decompile, disassemble, reverse engineer, modify, unbundle, detach or separate any part of or embedded within, or create derivative works based on, the Software, except solely to the most minimal extent required to be permitted by applicable law, provided that any such limited legal exception, if any, shall not in any event be deemed to be construed to be any contractual waiver by Ultra Config.
You shall not remove any readme files, notices, disclaimers, marks, or labels included in or on the Software as delivered by Ultra Config or any Approved Source.
You may not Use or allow Use of the Software in violation of any applicable law or regulation or to support or facilitate any illegal activity.
In the limited event that licensed Software includes source code, such source code is provided for reference purposes only unless expressly licensed otherwise by Ultra Config or its licensors.
SUBSCRIPTION AND LICENSE TERM
Subscription Use. If Software is licensed on a Subscription basis, the fixed Subscription Term will be listed in the SKU details. The Subscription start date will commence on the date that Ultra Config receives payment of the Software purchase.
The Subscription will end at the expiration of the Subscription Term. The Subscription will not automatically renew. For any Subscription, (i) new Subscriptions can be purchased at any time, provided that such purchases are not for retroactive coverage; and (ii) upon Your timely renewal of a Subscription, the start date of Your renewed Subscription Term will be the day following the expiration of Your current Subscription Term.
Non-Commercial Purposes. Software that is licensed for non-commercial purposes including but not limited to trial, demonstration, education, or Your internal testing and lab purposes (“Non-commercial Purposes”), shall have a limited one-time License Term of a set number of days, unless otherwise expressly permitted by Ultra Config in writing. In no event shall Ultra Config have any obligation to continue or to renew any Software license for Non-commercial Purposes.
Payment Terms. Payment is due prior to provisioning of the software product. Payment can be completed through the official Ultra Config website at https://ultraconfig.com.au/pricing
Software Support. Ultra Config shall provide software support for the purchased Software at no additional charge during the Subscription Term.
Taxes. All prices and fees payable in respect of any license to Software (including any Subscription) or any Maintenance Services contract entered into with Ultra Config are exclusive of tax for all countries residing outside of Australia. You shall be responsible for paying taxes arising from the licensing or delivery of Software (including any Subscription) or purchase of support services.
Ownership. Ultra Config and Ultra Config’s licensors, respectively, retain exclusive ownership of all right, title, and interest of all intellectual property and any and all other legal rights in and to the Software. Nothing in this Agreement constitutes a sale or other transfer or conveyance of any right, title, or interest in the Software. For the sake of clarity, the Software is licensed pursuant to the terms and conditions of this Agreement, including, without limitation, this EULA, and not sold.
“Confidential Information” includes the Software, any information disclosed by Ultra Config to You relating to the Software or any other information that a reasonable person would deem to be of a confidential nature given the nature of such information and/or the circumstances under which such information is disclosed. Confidential Information does not include information that: (a) is or becomes generally known through no fault of Yours, (b) is known to You at the time of disclosure, as evidenced by its records, (c) is hereafter furnished to You by a third party as a matter of right and without restriction on disclosure; (d) is independently developed by You without any breach of this Agreement; or (e) is disclosed in response to a valid order of a court or other governmental body or is otherwise required by law to be disclosed, provided You give prompt and sufficient notice to Ultra Config to enable it to take protective measures.
You shall use a reasonable degree of care to maintain all Confidential Information in confidence and shall not disclose to any third party nor use Confidential Information of Ultra Config for any unauthorized purpose. You may only disclose Confidential Information to those of its employees and representatives that both (i) have a need to know for Your internal purposes in configuring, installing, Using or supporting the Software and (ii) are legally bound by confidentiality obligations no less stringent than those of this Agreement.
Termination for Breach. Ultra Config may terminate Your license to the Software and any updates immediately upon written notice to You if You have Used the Software in excess of its license rights (including, but not limited to, Use in excess of the Licensed Units or Use of unlicensed features) or otherwise breaches this Agreement, including the EULA. This right to terminate for breach is in addition to any other remedy to which Ultra Config may be entitled to pursue.
Termination for Insolvency. Either Party may terminate this Agreement, including the EULA, or any license hereunder, effective immediately upon written notice, if the other Party becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if, in the case of involuntary petitions or proceedings, that petition or proceeding is not dismissed with prejudice within sixty (60) calendar days after filing.
Effect of Termination or Expiration. Upon termination of this Agreement, including the EULA or expiration of a Subscription License Term (without renewal or reinstatement), You shall promptly permanently delete, destroy, or return to Ultra Config all copies of the Software and any Confidential Information in its possession or control. Ultra Config may, at its option, require an authorized representative of Yours to certify that such Software and documentation was deleted and/or destroyed and You shall promptly comply with such requirement.
Limited Warranty. To the fullest extent not prohibited by law, Software licensed for any non-commercial purpose including but not limited to demonstration, trial, lab, testing, or educational uses are furnished “AS IS” WITH ALL FAULTS AND WITHOUT EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REMEDIES.
Warranty Restrictions. No warranty shall apply if the Software (a) has been altered, except by Ultra Config; (b) has not been installed, operated, repaired, or maintained in accordance with documentation and instructions made available by Ultra Config; (c) has been licensed solely for the non-commercial purposes set forth in this EULA or if the Software is beta software or otherwise has not been commercially released. In addition, the Software must not be used in for the following purposes (i) use in the design, construction, operation or maintenance of any nuclear facility, (ii) navigating or operating aircraft; (iii) operating life-support or life-critical medical equipment, and Ultra Config disclaims any express or implied warranty of fitness for such uses. You are solely responsible for backing up programs and data to protect against loss or corruption unless opting into the weekly backup service offered by Ultra Config.
Ultra Config warrants that for the duration of the Subscription Term that any software bugs discovered will be resolved by Ultra Config within 30 days. A software bug is defined by a difference in behaviour between the operation of the Software and the advertised feature set in all material published by Ultra Config. If Ultra Config is unable to resolve a software bug within 30 days the customer will then qualify for a refund of their Annual Subscription Fee. The Product Cost will only be refundable if the defect is reported within the first 90 days of the first Subscription Term.
DISCLAIMER OF WARRANTIES
Ultra Config, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, APPROVED SOURCES, RESELLERS, DISTRIBUTORS, SUPPLIERS, SUBLICENSEES, AND AGENTS (“DISCLAIMING PARTIES”) HEREBY DISCLAIM ANY WARRANTY, REPRESENTATION OR ASSURANCE THAT THE SOFTWARE, OR ANY OTHER EQUIPMENT RUNNING THE SOFTWARE, WILL OPERATE WITHOUT ERROR OR INTERRUPTION, OR WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. TO THE EXTENT PERMITTED BY LAW, THE SOFTWARE IS PROVIDED “AS IS” AND WITH ALL FAULTS. Ultra Config SHALL NOT BE RESPONSIBLE FOR ANY THIRD PARTY’S UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY OF YOUR TRANSMISSION(S) OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED USING THE SOFTWARE, ANY INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, DESTRUCTION, OR USE OF RECORD. Ultra Config DOES NOT WARRANT THAT THE SOFTWARE IS FREE OF INACCURACIES, ERRORS, BUGS, VIRUSES, HACKERS, INTERRUPTIONS, OR OTHER HARMFUL COMPONENTS OR PROGRAM LIMITATIONS. AS BETWEEN YOU AND Ultra Config, THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE OR ANY RELATED SERVICES, REMAINS WITH YOU, WHO ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY ANY OF THE FOREGOING, FOR ANY ACT OF GOD, INTERNET BLACKOUT (OR BROWNOUT), YOUR IMPROPER APPLICATION ARCHITECTURE OR IMPLEMENTATION, ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR ANY TRANSMISSION(S) ENTERED THROUGH THE SOFTWARE. EXCEPT FOR THE EXPRESS WARRANTIES AND REMEDIES SET FORTH IN THE PRODUCT WARRANTY POLICY, Ultra Config DISCLAIMS ALL CONDITIONS, REMEDIES AND WARRANTIES IN AND TO THE SOFTWARE (WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, THAT WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL ANY OF THE DISCLAIMING PARTIES BE LIABLE FOR ANY CAUSE OR ACTION OR CLAIM, HOWSOEVER ARISING, INCLUDING, WITHOUT LIMITATION, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE FOR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF BUSINESS INFORMATION OR OTHER DATA, COST OF COVER OR OTHER PROCUREMENT OF SUBSTITUTE GOODS, ANY OTHER PECUNIARY LOSS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, HYBRID, OR CONSEQUENTIAL DAMAGES INCURRED IN CONNECTION WITH, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE SOFTWARE, ANY UPDATE THERETO, OR ANY RELATED SERVICES, OR THE FAILURE TO PROVIDE FULL OR ADEQUATE SOFTWARE SUPPORT, EVEN IF ANY OF THE DISCLAIMING PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU EXPRESSLY ACKNOWLEDGE THAT THE CUMULATIVE LIABILITY OF THE DISCLAIMING PARTIES IN CONNECTION WITH ANY AND ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY WHETHER UNDER CONTRACT OR STATUTE, IN TORT (INCLUDING, WITHOUT LIMITATION, PRODUCT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF (I) ONE HUNDRED US DOLLARS ($100) FOR ALL Ultra Config SOFTWARE LICENSED TO YOU; OR (II) THE PRICE PAID TO Ultra Config FOR LICENSE RIGHTS TO THE SOFTWARE WHICH GAVE RISE TO THE CLAIM. YOU SHALL DEFEND, INDEMNIFY AND HOLD Ultra Config HARMLESS FROM AND AGAINST ANY LIABILITY, DAMAGES, LOSS OR COST (INCLUDING ATTORNEYS' FEES) ARISING OUT OF OR RELATING TO ANY DISPUTE, LAWSUIT, ADMINISTRATIVE HEARING, ARBITRATION OR SETTLEMENT BASED ON ANY CLAIM BY ANY PARTY OTHER THAN YOU RELATING TO YOUR VIOLATION OF THIS AGREEMENT OR USE OF THE SOFTWARE (INCLUDING ANY UPDATE THERETO). Ultra Config HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY STATED ABOVE. THOSE DISCLAIMERS AND LIMITATIONS REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES, AND THEY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
COMPLIANCE WITH LAWS
You shall comply with all applicable laws and regulations in connection with Your movement and Use of the Software. You shall not re-export or transfer in country the Software or any portion of it, or any non-published materials or information furnished in connection with the Software or with support services without first obtaining all licenses, permits and authorizations under US and any other applicable laws and regulations that export, re-export, transfer in country, use or importation of the Software. Without limiting the foregoing, You warrant, represent and agree that You do not intend and You will not (i) use or permit anyone else to use the Software for or in connection with any Prohibited Activity; (ii) transport, deliver or transmit the Software to, or Use the software in Cuba, Iran, North Korea, Sudan, Syria or the Crimean region; (iii) grant access to any Software to another person, entity or organization located in Cuba, Iran, North Korea, Sudan, Syria or the Crimean region; or (iv) transport, deliver or transmit the Software to a Sanctioned Party, as defined below (or grant any such Sanctioned Party access to the Software).
Ultra Config may without liability or breach suspend warranty support and/or support services if and so long as Ultra Config has reason to believe that such suspension is necessary to avoid violation of any applicable law or regulation. As used herein, “Prohibited Activity” means any of the following: (i) any activity in violation of applicable law, (ii) (A) the design, development, fabrication or testing of nuclear weapons or nuclear explosives; (B) the design, construction, fabrication, or operation of facilities for the chemical processing of irradiated special nuclear or source material, for the production of heavy water, for the separation of isotopes of special nuclear material or for the fabrication of nuclear reactor fuel containing plutonium; (C) the design, development, production of or use of rocket or missile systems, space launch vehicles, sounding rockets, or unmanned air vehicle systems (including cruise missile systems, target drones and reconnaissance drones); or (D) the design, development, production, stockpiling, or use of chemical or biological weapons, or precursors, or (iii) engage in any activity in violation of human rights, of democratic principles or of the freedom of speech as defined in the Charter of Fundamental Rights of the EU where use is made of interception techniques and digital data transfer equipment for monitoring mobile phones or for reading text messages or where use is made of targeted surveillance of internet use (e.g., by means of monitoring centres and lawful interception gateways. As used herein, “Sanctioned Party” means a party identified on the US Bureau of Industry and Security (BIS) Entity List, Denied Persons List, Unverified List or the US Office of Foreign Asset Control (OFAC) Specially Designated Nationals list (“SDN List”) (or a party 50% or more controlled by anyone such SDN List), or any other party on any component list of the Comprehensive Screening List (https://www.export.gov/article?id=Consolidated-Screening-List ).
COMMERCIAL COMPUTER SOFTWARE
The Software is a “commercial item” as defined at Federal Acquisition Regulation (48 C.F.R.) (“FAR”) section 2.101 comprised of “commercial computer software” and “commercial computer software documentation” as those terms are used in FAR 12.212. Consequently, regardless of whether You are the US Government or a department or agency thereof, You shall acquire only those rights with respect to the Software that are set forth in this Agreement and the License Entitlement.
This Agreement shall be exclusively interpreted and governed by the laws of Australia without reference to conflict of law principles. The Parties specifically agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement.
Except for Your unauthorized Use of Software and payment of any outstanding license fees, neither Party shall be responsible for any failure or delay for only so long as its failure to or delay in performance is due to causes beyond its reasonable control, including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or fuel crises (“Force Majeure”), provided that such Party gives prompt written notice thereof to the other Party and uses its diligent efforts to resume performance. Either Party shall be entitled to terminate this Agreement if the Force Majeure event continues for a period of one month.
SEPARATE SIGNED AGREEMENTS
If You and an authorized representative of Ultra Config have signed a valid separate written agreement governing Your Use of any or all Software licensed from Ultra Config, then with respect to that Software that signed agreement shall take precedence solely to the limited extent it is inconsistent with the applicable provision(s) of this Agreement.
COMPLETE AGREEMENT - MODIFICATIONS
This Agreement constitutes the entire agreement between the Parties regarding its subject matter and supersedes all prior agreements, commitments or representations, oral or written related to the Software, including any Update thereto, and any related services. This Agreement shall supersede all pre-printed terms and conditions contained on any purchase order, task order or other business form submitted by either Party to the other. Except as otherwise provided in this section, this Agreement may not be amended or modified except by a writing executed by the duly authorized representatives of each Party. If the Parties have signed a separate agreement pertaining to Your rights and duties regarding the Software, or any services, then that written agreement shall control if there is any conflict between it and this Agreement.
If any provision of this Agreement is determined by an arbitrator or court of competent jurisdiction to be prohibited or unenforceable, the Parties shall have ten (10) business days to renegotiate each such provision in good faith. If the Parties are unable to do so, then such provision shall be deemed narrowed to the broadest term permitted and shall be enforced as so narrowed. If any such provision is nevertheless deemed by such arbitrator or court to be unlawful, void, or unenforceable, it shall be deemed severable from, and shall in no way affect the validity or enforceability of any remaining provision of, this Agreement.
Except as otherwise provided elsewhere in this Agreement, any report or notice under this Agreement shall be given in an email to the Ultra Config support team.
No waiver of satisfaction of a condition or non-performance of an obligation under this Agreement shall be effective unless it is in writing and signed by the Party granting the waiver.
This EULA and the Software have been written in the English language, and the Parties agree that the English version shall govern and prevail over any other translated version of the EULA.
Please read carefully. By signing up you confirm that you have read and agree to be bound by the Terms and Conditions of use.