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Obsidian Scheduler End User License Agreement
IMPORTANT: THIS AGREEMENT (OR “EULA“) IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE (“YOU“ OR “CUSTOMER“) AND CARFEY SOFTWARE CORPORATION (“CARFEY“). BY DOWNLOADING OR INSTALLING AND USING THE SOFTWARE, CUSTOMER ACCEPTS THE SOFTWARE AND AGREES TO THE TERMS OF THIS AGREEMENT. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. BY INSTALLING AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THESE TERMS, THEN DO NOT INSTALL THE SOFTWARE. 
1.	Definitions
(a)	“Hardware License“ has the meaning ascribed to it in Section 2(b).
(b)	“Site License“ has the meaning ascribed to it in Section 2(c).
(c)	“Initial License“ means a single Instance of the Software that is provided to each organization and not subject to the license fees described in Section 5.
(d)	“Internet Version“ means a version of the Software where purchased licenses can be verified over the Internet.  
(e)	“Instance“ means each running instance of the Software running on an end-user’s equipment and does not include non-running instances.
(f)	“Hardware Version“ means a version of the Software where purchased licenses are verified by your equipment’s’ MAC address and hostname. 
(g)	“Site License Version“ means a version of the Software where purchased licenses are verified by a license key without accessing the Internet. 
(h)	“Limited Warranty“ has the meaning ascribed to it in Section 8(a). 
(i)	“Software“ means the Obsidian Scheduler and corresponding electronic documentation and associated media. Any updates to such Software which you are entitled to receive and that has been provided to you by Carfey shall also mean Software for the purposes of this Agreement.
(j)	“Third Party Licenses“ has the meaning ascribed to it in Section 10. 
(k)	 “Warranty Period“ has the meaning ascribed to it in Section 8(a). 
(l)	“Carfey Website“ means www.obsidianscheduler.com 
2.	License Grants
The licenses granted in this Section 2 are subject to the terms and conditions set forth in this EULA:
(a)	If the Software is an Internet Version, this Section 2(a) shall apply instead of Section 2(b) and Section 2(c): Subject to the terms and conditions of this Agreement, Carfey hereby grants you, and you accept, the right to install and use the Software for each Instance that you have paid the applicable license fees for. You acknowledge and agree that Internet access is required to run each Instance of the Internet Version of the Software.
(b)	If the Software is a Hardware Version, this Section 2(b) shall apply instead of Section 2(a) and Section 2(c): Subject to the terms and conditions of this Agreement, Carfey hereby grants you, and you accept the right to install and use the Software for the specific equipment and hardware that you provided MAC addresses and hostnames for provided during your purchase of the Software (“Hardware License”). A separate Hardware License must be purchased for each Instance of the Hardware Version of the Software.
(c)	If the Software is a Site License Version, this Section 2(c) shall apply instead of Section 2(a) and Section 2(b): Subject to the terms and conditions of this Agreement, Carfey hereby grants you, and you accept the right to install and use the Software that you have paid the applicable license fees for (“Site License”). 

An Initial License may, in Carfey’s sole discretion, be made available to you or your organization. 
You agree that Carfey may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse Carfey for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.
Your license rights under this EULA are non-exclusive.
3.	License Restrictions
Except to the extent contrary by applicable law:
(a)	Other than expressly set forth in Section 2, you may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another over a network. 
(b)	You may not alter, merge, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. 
(c)	Unless otherwise provided herein, you may not rent, lease, host or sublicense the Software. 
(d)	You may permanently transfer all of your rights under this EULA only as part of a sale or transfer of substantially all of a business’s assets, provided you retain no copies, you transfer all of the Software (including all component parts, the media and electronic materials, any upgrades, this EULA, the serial numbers, and, if applicable, all other software products provided together with the Software), and the recipient agrees to the terms of this EULA. 
(e)	Other than as expressly set forth in Section 2(b) hereof, you may not modify the Software or create derivative works based upon the Software.
(f)	Unless otherwise provided herein, you shall not (A) install or run more Instances of the Software than you have purchased Licenses for or have paid the applicable license fees for, or (B) alter the contents of a hard drive or computer system to enable the use of multiple Instances of the Software for an aggregate period in excess of the purchased Licenses.
(g)	You shall not use the Software to develop any application having the same or similar primary function as the Software.
(h)	You acknowledge that the Software is of Canadian origin. You may not export the Software into any country to which either the United States or Canada has prohibited export.
(i)	You  may need to obtain the appropriate license keys from the Software for input during the purchase process to activate additional Instances. 
(j)	In the event that you fail to comply with this EULA, Carfey may terminate the license (remotely or otherwise) and you must destroy all copies of the Software (with other rights of both parties and all other provisions of this EULA surviving any such termination). 
4.	Support and Maintenance 
(a)	Carfey agrees to provide you, at no extra charge, with basic e-mail and phone support for the Software on a best efforts basis (“Support“). Carfey does not warrant or provide any service level guarantees regarding its provision of the Support. You can subscribe for additional support, training and maintenance for an additional charge. 
(b)	Carfey agrees to supply you, at no extra charge, with any improvements or modifications to the Software that Carfey generally  makes available as a major release, minor release (e.g. releases that end in .1, .2, etc.) and any essential updates, enhancements and fixes (“Updates“). THE INSTALLATION AND CONFIGURATION OF UPDATES ARE NOT INCLUDED. YOU MAY PURCHASE INSTALLATION AND CONFIGURATION SERVICES FROM CARFEY AT AN ADDITIONAL COST. Updates to the Software may require an Internet connection. 
(c)	Carfey’s obligation to provide Support is contingent upon proper use of the Software and full compliance with this Agreement. Moreover, Carfey shall be under no obligation to provide Support should the Support be required due to (i) failure to operate the Software within any recommended system requirements provided with the Software; (ii) any modification or attempted modification of the Software by you or any third party; or (iii) your failure or refusal to implement Software Updates.
(d)	Carfey reserves the right to discontinue Support at any time and for any reason by posting a notice in a conspicuous area of the Carfey website at www.obsidianscheduler.com (“Site“).  Support will be discontinued thirty (30) days after posting notice of such discontinuance. 
5.	Payments and Taxes
(a)	You shall pay to Carfey license fees for each Instance of the Software as advertised prior to purchase. All license fees are due immediately prior to delivery of the Software. 
(b)	License fees and other charges described in this Agreement, do not include federal, provincial or local sales, use, excise (including G.S.T./H.S.T.), service, or other taxes now or hereafter levied. Any amounts paid or payable by you in respect of any taxes on such fees or charges (excepting only taxes on net income) shall be for your account, and you hereby agree to indemnify and hold harmless Carfey against all costs incurred by Carfey in remitting any taxes due, and interest and penalties imposed on Carfey, by reason of your late payment or miscalculation of any such tax.
6.	Ownership
The foregoing grants of rights give you limited license to use the Software. Except as expressly provided in this Agreement, Carfey retains all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any improvements, modifications, derivative works, and applications you may develop), and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by Carfey.
7.	Consent to Use of Data
You agree that Carfey and its affiliates may collect and use all information you provide as part of any such services related to the Software, which may include your name, e-mail address and company name. We agree not to use this information in a form that personally identifies you. Such information will be used for the purposes of gathering usage statistics, facilitating support, activation, license checking and copy control.
8.	Limited Warranty, Disclaimer and Indemnity
(a)	CARFEY PROVIDES THE SOFTWARE ON AN “AS IS“ BASIS AND EXCEPT AS SPECIFICALLY WARRANTED HEREIN, CARFEY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR OTEHRWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. CARFEY DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE, VIRUS-FREE OR WILL OEPRATE WITHOUT INTERRUPTION. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS BORNE BY YOU. WITHOUT LIMITATION, YOU ASSUME THE SOLE RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS OR FOR THE USE AND RESULTS OBTAINED FROM THE SOFTWARE. 
(b)	You agree to indemnify, hold harmless and defend the Carfey Entities (defined in Section 11 below) from and against any loss, damage, claims or lawsuits, including any lawyer fees, that arise or result from your use or distribution of the Software. 
 
9.	Limitation of Liability
(a)	TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CARFEY, ANY OF ITS PARENTS, SUBSIDIARIES, OR AFFILIATES, ANY OF THEIR EMPLOYEES, OFFICERS OR DIRECTORS (COLLECTIVELY THE “CARFEY ENTITITES“) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF CARFEY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b)	IN ANY CASE, THE CARFEY ENTITIES’ TOTAL LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY) RECEIVED BY CARFEY IN THE TWENTY FOUR (24) MONTHS PRIOR TO THE CLAIM BEING MADE. 
10.	Third Party Software
The Software may contain third party software and/or open source software, which may be subject to third party licenses and require notices and/or additional terms and conditions (“Third Party Licenses“). The Third Party Licenses are included in the Software package you have downloaded and are made a part of and incorporated by references into this EULA. By accepting this EULA, you are also accepting the Third Party Licenses, if any, set forth therein. 
11.	General
(a)	This Agreement constitutes the entire agreement between the parties concerning the subject-matter hereof.
(b)	Carfey may update the terms of this License upon providing thirty (30) days notice provided by posting an updated version of this Agreement in a conspicuous location on the Site. The Licensee’s continued use of the Software after the end of such thirty (30) day notice period will be deemed to be acceptance of the revised Agreement. 
(c)	Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of Ontario and the Federal laws of Canada, excluding its conflict of law provisions. 
(d)	Unless otherwise agreed in writing, all disputes relating to this Agreement shall be subject to final and binding arbitration in Toronto, Ontario, by an arbitrator with experience in software license and intellectual property agreements.
(e)	This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. 
(f)	If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. 
(g)	The controlling language of this Agreement is English. If Licensee has received a translation into another language, it has been provided for the Licensee’s convenience only. 
(h)	A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. 
(i)	This Agreement shall be binding on and shall ensure to the benefit of the parties, their successors and permitted assigns.
(j)	Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
(k)	The relationship between Licensor and Licensee is that of independent contractors and neither Licensee nor its agents  shall have any authority to bind Licensor in any way.
(l)	The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning.
(m)	All questions concerning this EULA shall be directed to Carfey Software Corporation at licensing@carfey.com.   
Carfey, Obsidian Scheduler, and other trade-marks contained in the Software are trade-marks or registered trade-marks of Carfey Software Corporation in Canada and/or other countries. Third party trade-marks, trade names, product names and logos may be the trade-marks or registered trade-marks of their respective owners. You may not remove or alter any trade-mark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use Carfey’s or its licensors’ names or any of their respective trade-marks. 
© Copyright 2015. Carfey Software Corporation. All Rights Reserved.
I have read and agree to the terms of the End-User License Agreement above.
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