NComputing Software End - User
License Agreement (EULA)
END USER LICENSE AGREEMENT FOR NCOMPUTING SOFTWARE
IMPORTANT -PLEASE READ CAREFULLY
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND NCOMPUTING GLOBAL INC. (“NCOMPUTING”). YOU MUST CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“EULA”) IN ITS ENTIRETY BEFORE INSTALLING OR USING NCOMPUTING SOFTWARE (“SOFTWARE”) IN ANY WAY. BY CLICKING ON THE “ACCEPT” BUTTON PRESENTED IN CONNECTION WITH THIS EULA, OR BY INSTALLING OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS EULA ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY TO THE TERMS OF THIS EULA. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS EULA DO NOT INSTALL OR USE THE SOFTWARE, AND IMMEDIATELY DELETE ALL THE SOFTWARE FROM THE COMPU
The terms and conditions set forth in this EULA apply to the Software. This EULA supersedes all other licensing terms for the Software. Updates to the Software provided by NComputing through Internet-based services or other means are also subject to this EULA, unless other terms accompanying those updates explicitly supersede or amend this EULA.
The Software is licensed to you on both per Server Device and per Client Device basis.
For the purposes of this EULA, the following terms shall have the following meanings:
- “Client Device”means an NComputing device running the NComputing Client Software. A Client Device is not equivalent to a personal computer and is not compatible with all personal computer applications, software and/or peripherals.
- “Software” means all proprietary NComputing software
- “Server Device” means a physical or virtual machine on which the Software is installed and with which one or more Client Devices may connect.
- “Open Source Software”means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the BSD License; and (e) the Apache License.
- “You” or “you” means the company, entity or individual who enters into this EULA and has rightfully acquired the Software from NComputing or its authorized sources.
The Software is licensed to you on both per Server Device and per Client Device basis.
Installation and use of license
Subject to the terms and conditions set forth in this EULA and conditional upon your compliance therewith, NComputing grants You a limited, non-exclusive license to (i) download, install, and use the Software on a Server Device or Client Device that you register and assign to your copy of the Software via the NComputing registration process, and (ii) store one copy of the Software on a storage device, such as a network server, provided that You reproduce, unaltered, all proprietary notices on or in any such copies.
Unless applicable law gives You more rights despite the limitations in this EULA, You may use the Software only as expressly permitted herein. You must comply with any technical limitations in the Software that only allow you to use it in certain ways. You may connect the Server Device on which the Software is installed to up to the maximum number of Client Devices permitted by NComputing in the documentation accompanying the Software. Furthermore, you may not:
- use the Software on any devices or products other than those that you or your business organization own or have a valid legal right to use;
- use the Software on any devices other than Server Devices or Client Devices;
- connect the Server Device on which the Software is installed to more than the maximum number of Client Devices permitted by NComputing in the applicable documentation;
- connect Client Devices that NComputing has determined to be prohibited from use to Server Devices on which Software is installed. NComputing may change the determination of allowed Client Devices at their own discretion.
- modify, translate, reverse engineer, decompile, disassemble or otherwise attempt (i) to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection mechanisms in the Software, including without limitation any such mechanism used to restrict or control the functionality of the Software, or (ii) to derive the source code or the underlying ideas, algorithms, structure or organization from the Software (except that the foregoing limitation does not apply to the extent that such activities may not be prohibited under applicable law); or
- make more copies of the Software than expressly permitted in this EULA;
- publish the Software for others to copy; or
- rent, lease, distribute, lend, sublicense, modify or create derivative works based on the Software or any part thereof, or grant to any third party any rights in the Software and its accompanying documentation, or any modifications of any of the foregoing, without the prior written consent of NComputing.
The Software is licensed, not sold. NComputing reserves all rights not expressly granted herein. All intellectual property rights in and to the Software, including without limitation, all patents, copyrights, trademark, trade secret and other proprietary rights of any kind, remain solely the property of NComputing or its licensors.
aDDITIONAL THIRD PARTY SOFTWARE REQUIRE
The Software is not an operating system. In order to operate the Server Device and Client Devices, you may be required to purchase operating system software compatible with your Server Device and Client Device(s). This may require you to obtain appropriate number of Microsoft Windows Server licenses and client access licenses. You cannot use the Software with any MicrosoftWindows Client software (e.g., Windows 7, Windows 8, Windows 10, etc.) unless only a single user and no other user accesses the same Windows Client software at any one time, or you are authorized to do so under an applicable license from Microsoft or as expressly set forth below (see “Microsoft Windows Server to Windows XP License Rights”). NComputing is under no obligation to advise, consult or otherwise provide guidance to you regarding any third-party software licensing. You shall indemnify and hold NComputing and its distributors harmless from any and all claims, damages, costs, liabilities, etc. arising from your improper or unauthorized use of the Software, Microsoft Windows Server software, or any other third party software.
tHIRD PARTY SOFTWARE PROVIDED WITH THE FIRMWARE
You hereby acknowledge that the Software may contain Open Source Software. All Open Source Software contained in or provided with the Software is identified online, along with the applicable Open Source Software licenses, at: https://www.ncomputing.com/en/support/documentation.Copyrights and other proprietary rights to such Open Source Software are held by the copyright holders identified in the applicable Open Source Software licenses, and all Open Source Software is distributed to you under the applicable Open Source Software licenses. To the extent any such Open Source Software license requires that NComputing provide You such rights to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to You in this EULA, then such rights in the applicable Open Source Software license shall take precedence over the rights and restrictions granted in this EULA, but solely with respect to such Open
Source Software and solely to the extent of such inconsistency. You acknowledge that the Open Source Software license is solely between you and the applicable licensor of the Open Source Software. You shall comply with the terms of all applicable Open Source Software licenses.
rEGISTRATION AND vALIDATION
NComputing requires your copy of the Software to be registered and validated in the manner described during its installation and setup. Validation verifies that your copy of the Software is properly licensed. Without validation, your copy of the Software will not function.
- The Software may, from time to time, also require re-validation in order to confirm that your copy of the Software is still properly licensed.
- During the registration and validation processes, the Software may send information relating to the Software, Server Device, or the Client Device(s), to NComputing. This information includes, but is not limited to, the version and key code of the Software, the Internet protocol address of the Server Device or the Client Device(s), and other information provided by the end user of the Software.
- If, during the validation process, the Software is found not to be properly licensed or registered, the functionality of the Software may be affected. For example, you may
- need to reactivate the Software, or
- receive reminders to obtain and activate a properly licensed copy of the Software; and you may not be able to
- use or continue to use some or all of the features of the Software, or
- obtain certain updates to the Software from NComputing.
CLIENT DEVICE USAGE LIMITATIONS WITH VSPACE PRO SOFTWARE
- vSpace Pro Server Software is designed and developed by NComputing Global, Inc. and is exclusively licensed and permitted for use by NComputing Client Devices.
- NComputing, at their own discretion, reserves the right to change the determination of Client Devices which are allowed to use vSpace Pro Server Software. This determination may be based on any combination of Client Device model, type, part number and/or manufacture date.
- NComputing, at their own discretion, reserves the right to require additional fees to provide exemptions to allow the use of Client Devices that have been determined to be disallowed from use of vSpace Pro Server Software.
fEES AND OTHER CHARGES
NComputing may require additional fees or other charges to:
- Allow Offline Registration method of Software
- Provide an exemption for the use of Client Devices that NComputing has determined to be prohibited from use with the Software
- Use of certain features or functionality of Software
NComputing may make use of Internet-based services in the Software (the “Update Services”) to deliver to you Updates (as defined below) and/or notifications in connection with the Software. NComputing reserves the right to change its method of delivering the Update Services at any time. You must not interfere in any way with the Update Services. NComputing shall not be responsible for any errors in the Software or the License Keys that would have been fixed by Updates to the Software that NComputing attempted to provide but that were not applied because of interference with the Update Services.
- From time to time, NComputing may, at its own discretion, create updates and/or patches (hereinafter collectively referred to as “Updates”) to the Software. Updates may include support for and compatibility with operating system updates or service packs, bug fixes, and incremental improvements. Updates do NOT include major upgrades to the Software, which may contain major feature additions, support for previously unsupported operating systems, or support for new hardware products; such major upgrades constitute new software for which NComputing may charge additional fees and which may or may not be made available via the Update Services.
- NComputing may make further updates available to you for an additional fee per its Support and Subscription plans.
- You may obtain Updates only from NComputing or its authorized sources.
- The Software is designed to be compatible with currently supported operating systems and server hardware. Notwithstanding the foregoing, NComputing does not warrant and/or represent that the Software will be compatible with any operating systems, applications, hardware or software, or any updates or upgrades thereto. If you upgrade your operating system, applications, hardware or software, NComputing will not be liable for any problems that may occur as a result of an incompatibility between the Software and any such upgraded hardware or software product.
- You may not use these Update Services in any way that could harm them or impair anyone else’s use of the Software and/or the Update Services. You may not use these Update Services to try to gain unauthorized access to the Software, any Server Device(s) or Client Device(s), or any other software, service, data or network.
DATE USAGE RIGHTS
You acknowledge and agree that NComputing may collect and use any information generated by the Software, including, but not limited to, error reports, connection logs and other reports related to the Software and its usage and maintenance, to improve NComputing’s software and services. NComputing may also share such information with third parties, such as other hardware and software vendors, who may use it to improve their own products and services.
You may purchase maintenance and support services from NComputing pursuant to a separately executed support agreement. Maintenance and support terms for the Server Device and/or Client Device(s) are outside the scope of this EULA and are covered separately in the Limited Hardware Warranty documentation available online for download in the Support section of NComputing’s website at: www.ncomputingph.com.
term and termination
This EULA will remain in effect until terminated. Unauthorized copying of the Software or failure to comply with the terms of this EULA will result in automatic termination of this EULA and all licenses granted herein, and will make available to NComputing other legal remedies. This EULA and all licenses granted herein will automatically terminate if You go into liquidation, suffer or make any winding up petition, make an arrangement with Your creditors, or suffer or file any similar action in any jurisdiction in consequence of debt. This EULA and all licenses granted herein may also be terminated by NComputing as set forth in Section 14 below. Upon any termination of this EULA, You shall cease all use of and destroy all of your copies of the Software. Notwithstanding the expiration or termination of this EULA, it is acknowledged that those rights and obligations that by their nature are intended to survive such expiration or termination will survive, including, without limitation, the disclaimers of warranties and limitations of liability provided herein.
Limited warrant; disclaimer of warranties
NComputing warrants that the Software (and any Updates thereto) will perform substantially in accordance with the applicable user documentation for a period of ninety (90) days from the date of your receipt of the Software(the “Limited Warranty”). NComputing’s and its suppliers’ sole liability, and your exclusive remedy, for any breach of this Limited Warranty or for breach of any other warranty related to the performance of the Software shall be, at NComputing’s option, (i) to terminate this EULA and return the amount paid, if any, by you for the affected Software; or (ii) to repair or replace the Software to make it perform substantially in accordance with the Limited Warranty. This Limited Warranty shall not apply (i) if you make any unauthorized modifications to the Software, or misuse, abuse of the Software; (ii) if you use the Software for purposes other than its intended use; or (ii) if you violate any terms and conditions of this EULA. NComputing and its suppliers make no warranties, and provide no remedies, in connection with any defects discovered after the ninety-day Limited Warranty period.
EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY OPEN SOURCE SOFTWARE INCORPORATED THEREIN OR PROVIDED THEREWITH, AND ANY ACCOMPANYING DOCUMENTATION, ARE PROVIDED “AS IS”.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES EXPRESSLY STATED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY, WHICH NCOMPUTING SPECIFICALLY DISCLAIMS, FOR ITSELF AND ON BEHALF OF ITS SUPPLIERS, TOGETHER WITH ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE IN TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NCOMPUTING OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE DISCLAIMER OF IMPLIED WARRANTIES ABOVE MAY NOT APPLY TO YOU, IN WHICH CASE THE DURATION OF ANY SUCH IMPLIED WARRANTIES SHALL BE LIMITED TO NINETY (90) DAYS FROM THE DATE YOU PURCHASED OR RECEIVED THE SOFTWARE; PROVIDED, HOWEVER, THAT IN SUCH CASE NCOMPUTING’S OR ITS SUPPLIERS’ SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR BREACH OF SUCH IMPLIED WARRANTIES SHALL IN ANY CASE BE, AT NCOMPUTING’S OPTION, (i) TO REPAIR OR REPLACE THE SOFTWARE TO CONFORM IT TO SUCH APPLICABLE WARRANTY, OR (ii) TO TERMINATE THIS EULA AND RETURN THE AMOUNT PAID, IF ANY, BY YOUFOR THE AFFECTED SOFTWARE.
NCOMPUTING DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SOFTWARE WILL MEET YOUR SPECIFIC REQUIREMENTS. YOU ACKNOWLEDGE AND AGREE THAT PERFORMANCE OF THE SOFTWARE MAY VARY DEPENDING ON THE SERVER DEVICE, CLIENT DEVICE, THE SOFTWARE PROGRAMS RUNNING ON THE FOREGOING (INCLUDING THE SOFTWARE), AND THE BANDWIDTH AND CONFIGURATION OF THE NETWORK CONNECTING THEM. SINCE ALL CLIENT DEVICES SHARE THE SERVER DEVICE’S RESOURCES, A CLIENT DEVICE’S PERFORMANCE MAY DECREASE IF THE SERVER DEVICE’S PROCESSOR(S) OR OTHER RESOURCES BECOME OVERLOADED AS MORE CLIENT DEVICES ARE CONNECTED TO THE SERVER DEVICE OR IF A USER RUNS RESOURCE INTENSIVE APPLICATIONS.
limitation of liability
You agree to use the Software solely in accordance with, and within the limits permitted by, applicable laws, rules, regulations and orders.
This EULA constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements, oral or written, between the parties, and is intended as a final expression of their agreement, regarding the subject matter of this EULA other than any document expressly incorporated herein by reference. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this EULA.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.