All the rights and warranties covering the Software as defined below are stated in this End User License Agreement (hereinafter the “Agreement”).
This Agreement is a legal agreement between Futuremark Corporation, a Finnish company, (hereinafter “Futuremark”) and you, either an individual or, if purchased or otherwise acquired by or for an entity, an entity (hereinafter "You" or the "Licensee"). Futuremark owns all intellectual property rights in and to the Software and permits you to use the Software only in accordance with the terms of this Agreement. To the extent that Futuremark and licensee have entered into any master contract, this Agreement shall supersede such contract and shall govern the subject matter set forth below.
Please read this Agreement carefully before accessing the Software media, electronically downloading, installing, starting or otherwise using the Software. ANY OF THE ABOVE ACTIONS INDICATE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND TO THOSE TERMS AND CONDITIONS.
SHOULD YOU NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT DOWNLOAD, INSTALL, START OR OTHERWISE USE OR ACCESS THE SOFTWARE. EITHER RETURN THE UNOPENED MEDIA PACKAGE AND ACCOMPANYING ITEMS TO THE COMPANY FROM WHICH YOU OBTAINED THEM OR DELETE ALL POSSIBLE COPIES OF THE SOFTWARE FROM YOUR DEVICE.
1. DEFINITIONS
As used in this Agreement, the term ("Software") means, collectively: (i) the software product together which this Agreement is delivered including all of its different downloadable (“Downloadable”) and software-as-a-service (“SaaS”) editions (ii) all the contents of the disk(s), computer files, CD-ROM(s), DVD-ROM(s), electronic mail and its file attachments, or any other media with which this Agreement is provided, (iii) digital images, stock photographs, clip art, or other artistic works (iv) related explanatory written materials and any other possible documentation related thereto; (v) fonts, and (vi) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to You by Futuremark under this Agreement. The (“Web Service”) shall mean Futuremark’s web service for the Downloadable Software. The (“Instructions”) shall mean instructions and orders regarding the use of Futuremark trademarks and/or the test result output data generated by the Downloadable Software and made available through the Web Service that Futuremark may from time to time give in accordance with Section 7 below.
2. GRANT OF LICENSE
2.1 Subject to the terms and conditions of this Agreement and the Instructions, Futuremark hereby grants You during the validity of this Agreement a world-wide, non-transferable, non-exclusive, revocable right and license, without the right to sub-license, to use the Software for Your personal purposes and download, create copies and operate the Software on one (1) computer for that purpose (hereinafter the “License”). If licensing Downloadable Software, the License entitles You to send the results generated by the Downloadable Software to the Web Service, access the Web Service and to browse Your own results, other users’ results and other performance measurement data contained in the Web Service. Any other use of the Software is expressly forbidden.
2.2 You hereby acknowledge and agree that the License gives You only limited License and all rights, title and interest, including but not limited to all intellectual property rights in and to the Software, new versions, upgrades, updates, modifications, enhancements or copies thereof, and the ownership rights to the Software as well as to the results generated by the Downloadable Software and sent to the Web Service shall solely remain with Futuremark and/or its licensors.
2.3 You may use and copy the Software only in accordance with the terms of the license granted herein to You by Futuremark. You may not distribute the Software or copies of it or use the Software in any way contrary to the terms of this Agreement.
2.4 The License is valid only for as long as this Agreement is in force and the Licensee operates under the terms and conditions of this Agreement.
2.5 For avoidance of doubt, notwithstanding anything to the contrary, the Parties expressly agree that the license terms or any other terms of this Agreement may be altered by written agreement of the Parties.
2.6 If solely licensing Downloadable Software, You may not use the License in a production environment for testing software and/or hardware components created or produced by You or Your affiliates.
2.7 The License is valid only for non-commercial use. An Extended License or a Site License is required for all commercial use of the Software.
3. EXTENDED LICENSE
3.1 Futuremark may release versions of Software for professional use with extended license rights (“Extended License”). The Extended License allows the Licensee, in addition to rights granted under the License, to
3.1.1 use the Software for commercial demonstration purposes of Licensee products or any third-party products or other promotional purposes of Licensee;
3.1.2 use the Software in a commercial environment or operation such as hardware R&D, quality assurance, corporate IT operations and other similar activities; and
3.1.3 disclose and publish (except in geographical area where such disclosure or publication should infringe any third party's intellectual property rights) test results generated by the Downloadable Software, provided that the Instructions are followed and that the Licensee has obtained prior, written permission from Futuremark.
3.2 Software versions licensed under the Extended License are identified at Futuremark’s website, if any.
4. SITE LICENSE
4.1 Futuremark may release versions of Software for professional use with site license rights (“Site License”). The Site License allows the Licensee, in addition to rights granted under the License, to
4.1.1 use the Software for commercial demonstration purposes of Licensee products or any third-party products or other promotional purposes of Licensee;
4.1.2 use the Software in a commercial environment or operation such as hardware R&D, quality assurance, corporate IT operations and other similar activities;
4.1.3 disclose and publish (except in geographical area where such disclosure or publication should infringe any third party's intellectual property rights) test results generated by the Downloadable Software, provided that the Instructions are followed and that the Licensee has obtained prior, written permission from Futuremark; and
4.1.4 use the Software for professional purposes and if solely licensing Downloadable Software, download, create copies and operate the Software on any number of computers.
4.2 Software versions licensed under the Site License are identified at Futuremark’s website, if any.
5. RESTRICTIONS
5.1 You acknowledge and agree that You may not lease, rent, share, transmit, network or otherwise distribute the Software or your rights under this Agreement.
5.2 You shall not cause or permit any reverse engineering, disassembling, decompilation, translation, modification or adaptation of the Software or otherwise attempt to learn the inner workings, source code, structure, algorithms, or ideas underlying in the Software. You are expressly prohibited from adapting, modifying, revising, improving, upgrading, enhancing and creating derivative works of the Software for any purpose including error correction or any other type of maintenance, except as expressly allowed in the documentation.
5.3 All registration codes, usernames or passwords required to operate and access the Software and/or Web Service are strictly personal and should not be disclosed to a third party in any circumstances.
5.4 You are not allowed to establish an automated performance estimation system with the help of performance information obtained if solely licensing the Downloadable Software.
5.5 You agree not to access the Software or Web Service by any means other than through the methods provided by Futuremark for use in accessing the Software or Web Service. You acknowledge and agree that Futuremark may terminate your account or deny you access to all or part of the Software or Web Service without prior notice if you engage in any conduct or activities that violate any of the terms and conditions of the Agreement or any applicable laws, violate the rights of Futuremark, or are otherwise inappropriate for continued access.
6. RIGHTS TO THE SOFTWARE AND SERVICE
6.1 Futuremark (and its licensors, if any) solely retain all right, title and interest including but not limited to all intellectual property rights including but not limited to patents, copyrights, trademarks, trade secrets, know how, registrations, applications, and rights to apply therefore, whether issued or pending and whether registerable or not in and to the Software and Web Service, new versions, upgrades, updates, modifications, enhancements or copies thereof, all related documentation, and results generated by the Downloadable Software in accordance with Section 2.2 above. All rights, titles and interest shall at all times remain solely the property of Futuremark. Futuremark will also retain all rights in and to the results of any possible work performed by Futuremark under this Agreement. This Agreement shall not be deemed to result in the sale, transfer or any other conveyance of patents, trademarks, copyrights, or any other intellectual property right of whatsoever nature held or used by Futuremark to You. The Software and Web Service are protected by copyright laws, international treaty provisions and other applicable national laws.
6.2 You shall promptly notify Futuremark if You become aware of any unauthorized use of the Software and Web Service by any third party.
7. INSTRUCTIONS
7.1 Futuremark may publish the Instructions, subject to changes from time to time, on its web site. As a part of the license terms You agree to follow the Instructions and during the term of this Agreement and periodically check for the updates to Instructions. If Futuremark discovers that You are not following the Instructions and do not start to follow them after Futuremark has notified You of this, Futuremark is entitled to deny Your access to the Software and/or Web Service until You agree to start following the Instructions.
8. ACCOUNT INFORMATION AND SECURITY
8.1 Except for results generated by the Downloadable Software and sent to the Web Service, Futuremark does not own any data, information, or material that you submit to the Software and Web Service ("Your Information"). You hereby represent and warrant that you have all necessary rights in and to all Your Information you provide and that your submission of Your Information and its use in connection with the Software shall not infringe, violate, or misappropriate any intellectual property or other rights of third parties or contain any libelous, tortious, or otherwise unlawful information. You hereby represent and warrant that You will comply with all applicable laws in your use of the Software and Web Service, that you are authorized under such laws to provide Futuremark with any personal data and that You have obtained any necessary consent or fulfilled any other requirements for Futuremark to process such personal data in performance of the Software and Web Service.
8.2 Futuremark will collect and store Your Information in compliance with applicable laws and in a manner consistent with industry security standards. Futuremark has implemented technical, organizational, and administrative systems, policies, and procedures to help ensure the security, integrity, and confidentiality of Your Information and to mitigate the risk of unauthorized access to, use, or alteration thereof.
9. CONFIDENTIAL INFORMATION
9.1 Futuremark acknowledges that Your Information may include proprietary or confidential information (“Confidential Information”). Confidential Information, however, does not include information or materials that are already known to Futuremark at the time of disclosure and not subject to an obligation of confidentiality, publicly available or that become publicly available other than through the acts or omissions of Futuremark from other sources not in violation of any confidentiality obligations. Futuremark agrees that it will not, in whole or in part, disclose, transfer, use, or reverse engineer your non-aggregated, identifiable Confidential Information, except as necessary by Futuremark to perform the Software and Web Service. Futuremark agrees to treat your Confidential Information with the same degree of care it employs to protect its own Confidential Information and in no event less than a reasonable standard of care. We may use or disclose your Confidential Information: (i) to agents and subcontractors in connection with performing the Software and Web Service; (ii) when required to be produced pursuant to an order or command of any judicial or regulatory authority, (iii) when deemed in our discretion to be in the interest of public safety, or (iv) when required by any common law or statutory or regulatory duty.
9.2 While Futuremark does not sell, transfer or provide your personal information to third parties, Futuremark may provide aggregate and other information to third parties. Such information does not personally identify individuals, but instead provides a helpful understanding of the groups of people, including firms and organizations. Futuremark may also collect general data pertaining to every visitor to the Software or Web Service, including, but not limited to, the IP location, the length of time spent on the Software and/or Web Service, or device information. This information may be collected to, among other things: aggregate statistical information, facilitate system administration, and manage and improve Futuremark services. The data will not be considered Your Information or Confidential Information and Futuremark shall be free to use, disclose, and distribute such data to third parties without limitation.
10. INTERNET DELAYS
THE SOFTWARE AND WEB SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FUTUREMARK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
11. SUBCONTRACTING
You agree that we may use other subcontractors to perform the Software or Web Service. We will provide, as a term of any such subcontract, that the subcontractor will meet our current qualification requirements, including complying with our confidentiality requirements. Futuremark will be responsible for any breach of this Agreement by its subcontractors.
12. DISCLAIMER OF WARRANTY AND LIMITATIONS OF LIABILITY
12.1 Futuremark warrants to Licensee that: (i) it will provide the Software and Web Service with reasonable skill and care and in accordance with this Agreement; (ii) it has full power and authority to enter into this Agreement; (iii) the Software and Web Service, when used in accordance with the terms and conditions of this Agreement and the applicable Instructions, do not to its knowledge infringe the intellectual property rights of any third party; and (iv) it will comply with all applicable laws and regulations in the performance of its obligations hereunder. Futuremark does not warrant that: (v) the Software and Web Service provided pursuant to this Agreement will be uninterrupted or error free; (vi) that Licensee will obtain any specific results by using the Software or Web Service; or (vii) the opinions or findings it provides in connection with the Software and Web Service will be recognized or accepted by third parties or represent legal or other regulatory advice. Futuremark makes no warranty, guarantee or representation, either express or implied, regarding the merchantability or fitness for a particular purpose of the Software and Web Service or suitability or fitness of the Software and Web Service for the purposes of compliance with any and all administrative, regulatory, or governmental requirements.
12.2 LICENSEE AGREES TO DEFEND, INDEMNIFY, AND HOLD FUTUREMARK AND ITS LICENSORS HARMLESS FROM ANY AND ALL CLAIMS, LIABILITIES, COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES, ARISING IN ANY WAY FROM LICENSEE’S USE OF THE WEB SERVICE AND SOFTWARE OR THE PLACEMENT OR TRANSMISSION OF ANY MESSAGE, INFORMATION, SOFTWARE, OR OTHER MATERIALS THROUGH THE WEB SERVICE AND SOFTWARE BY LICENSEE OR LICENSEE USERS OF THE ACCOUNT OR RELATED TO ANY VIOLATION OF THIS AGREEMENT BY LICENSEE OR LICENSEE USERS OF THE ACCOUNT.
12.3 IN NO EVENT SHALL FUTUREMARK OR ITS AUTHORIZED DISTRIBUTORS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR THE WEB SERVICE, EVEN IF FUTUREMARK OR ITS AUTHORIZED DISTRIBUTORS HAVE BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. FUTUREMARK AND ITS AUTHORIZED DISTRIBUTORS AND RESELLERS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGES OR COSTS, ARISING OUT OF, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, LOSS OF USE OF THE SOFTWARE OR THE MEDIA, LOSS OF DATA OR EQUIPMENT, THE COSTS OF RECOVERING THE SOFTWARE, THE MEDIA, DATA OR EQUIPMENT, THE COST OF SUBSTITUTE SOFTWARE, MEDIA, DATA OR EQUIPMENT OR CLAIMS BY THIRD PARTIES, OR OTHER SIMILAR COSTS.
12.4 SINCE LOCAL LEGISLATION IN SOME COUNTRIES DOES NOT ALLOW ANY EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; THE ABOVE LIMITATIONS OR EXCLUSIONS MAY APPLY TO YOU ONLY PARTLY OR NOT AT ALL.
12.5 IN ANY EVENT, IF ANY STATUTE IMPLIES WARRANTIES OR CONDITIONS NOT STATED IN THIS AGREEMENT, FUTUREMARK'S ENTIRE LIABLITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE LICENSE TO THE SOFTWARE.
13. COMMENCEMENT AND TERMINATION
13.1 This Agreement becomes effective as of the first time You install or access the Software. You may terminate this Agreement at any time by (i) permanently deleting, destroying, and returning, at Your own costs, any Downloadable Software, all backup copies, and all related materials provided by Futuremark or (ii) by thirty (30) day written notice to Futuremark for any License of SaaS Software. If You terminate prior to the end of the License term, there are no refunds for fees paid. This Agreement automatically and immediately terminates without notice from Futuremark if You materially breach any provision of this Agreement. In such an event, You must immediately delete, destroy, or return at Your own cost, any Downloadable Software, all backup copies, and all related material to Futuremark.
13.2 Once Your License of SaaS Software has terminated, Futuremark will promptly destroy Your Information contained within the SaaS Software. You agree that Futuremark may retain one (1) copy of Your Information in an encrypted archived computer backup system made in accordance with Futuremark’s business continuity and disaster recovery policies.
14. MISCELLANEOUS
14.1 No delay by either party in enforcing the provisions of this Agreement shall prejudice or restrict its rights nor shall any waiver of rights operate as a waiver of any subsequent breach.
14.2 If any provision of this Agreement or the application of any such provision would be invalid, void or unenforceable and/or should be held by a Court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent permissible by the applicable law.
14.3 This Agreement is made, executed and delivered in Espoo, Finland, and any controversy arising hereunder or relation to this Agreement shall be governed by and construed in accordance with the laws of Finland. The parties hereto hereby agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement and is strictly excluded in all proceedings.
14.4 In the event of any dispute between Licensee and Futuremark under this Agreement, the parties agree that they shall negotiate with each other in good faith in an attempt to resolve the dispute prior to any commencement of proceedings.
14.5 All disputes arising in connection with this Agreement, its negotiations, performance, breach, existence or validity shall be determined by final arbitration in Helsinki, Finland, in accordance with the Arbitration Rules of International Chamber of Commerce or any successor or replacement legislation, which may be in force. The parties agree to be bound by the arbitrator's decision.
14.6 However, if the Licensee is considered to have a status of a consumer, Futuremark might and is fully capable to choose another jurisdiction and forum such as forum of domicile of the Licensee. In such a case, the applicable law of the proceedings will be the national trade law or, when obligatory, the consumer legislation of the said forum. This might be especially applicable to those consumers residing in the European Union.
14.7 You acknowledge that You have the authority to execute this Agreement on behalf of the Licensee and You further acknowledge that this Agreement constitutes a valid and legally binding obligation on the part of the Licensee.
14.8 This Agreement may not be assigned by You but may be assigned without your consent by Futuremark to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
15 DOWNLOADABLE SOFTWARE INTERNET CONNECTIVITY AND PRIVACY
The terms of this section only apply to Downloadable Software:
15.1 Automatic Connections to the Internet. The Software may cause the computer, without notice, to automatically connect to the Internet and to communicate with the Futuremark website for purposes such as license validation and providing Licensee with additional information, features, or functionality. The following provisions apply to all automatic Internet connections by the Software:
15.1.1 Whenever the Software makes an Internet connection and communicates with the Futuremark website, whether automatically or due to explicit user request, the Futuremark Privacy Policy shall apply.
15.1.2 Whenever the Software connects to Futuremark website over the Internet, certain Licensee’s information is collected and transmitted by the Software to Futuremark.
15.2 Updating. The Software may cause Licensee’s computer, without additional notice, to automatically connect to the Internet (intermittently or on a regular basis) to (i) check for updates that are available for download to and installation on the computer and (ii) notify Futuremark of the results of installation attempts.
15.3 Activation. The Software may require Licensee to (i) activate or reactivate the Software or (ii) register the Software. Such requirement may cause Licensee’s computer to connect to the Internet without notice on install, on launch, and on a regular basis thereafter. Software or Licensee may also receive information from Futuremark related to Licensee’s license. Futuremark may use such information to detect or prevent fraudulent or unauthorized use not in accordance with a valid license.
15.4 Deactivation. Licensee may deactivate and uninstall the Software from its computer in order to install and activate the Software on another computer.
