Terms of Service
This copy of TempuCheck Software, which includes “online” or electronic documentation, associated media, and printed materials (“Software Product”) and accompanying documentation is licensed and not sold. This Software Product is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. TempuCheck, Inc., or its subsidiaries, affiliates, and suppliers (collectively “TempuCheck”), owns intellectual property rights in the Software Product. The Licensee’s (“you” or “your”) license to download, use, copy, or change the Software Product is subject to these rights and to all the terms and conditions of this End User License Agreement (“Agreement”).
YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY SELECTING THE “ACCEPT” OPTION AND DOWNLOADING THE SOFTWARE PRODUCT OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE PRODUCT. YOU MUST AGREE TO ALL OF THE TERMS OF THIS AGREEMENT BEFORE YOU WILL BE ALLOWED TO DOWNLOAD THE SOFTWARE PRODUCT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST SELECT “DECLINE” AND YOU MUST NOT INSTALL, USE, OR COPY THE SOFTWARE PRODUCT.
IN ADDITION, BY INSTALLING, COPYING, OR OTHERWISE USING ANY UPDATES OR OTHER COMPONENTS OF THE SOFTWARE PRODUCT THAT YOU RECEIVE SEPARATELY AS PART OF THE SOFTWARE PRODUCT (“UPDATES”), YOU AGREE TO BE BOUND BY ANY ADDITIONAL LICENSE TERMS THAT ACCOMPANY SUCH UPDATES. IF YOU DO NOT AGREE TO THE ADDITIONAL LICENSE TERMS THAT ACCOMPANY SUCH UPDATES, YOU MAY NOT INSTALL, COPY, OR OTHERWISE USE SUCH UPDATES.
This Agreement entitles you to install and use one copy of the Software Product. In addition, you may make one archival copy of the Software Product. The archival copy must be on a storage medium other than a hard drive, and may only be used for the reinstallation of the Software Product. This Agreement does not permit the installation or use of the Product Software in any way that is against the law or that creates or propagates malware. This Agreement also does not permit the installation or use of multiple copies of the Software Product, or the installation of the Software Product on more than one computer at any given time, on a system that allows shared use of applications, on a multi-user network, or on any configuration or system of computers that allows multiple users. Multiple copy use or installation is only allowed if you obtain an appropriate licensing agreement for each user and each copy of the Software Product for further information regarding multiple copy licensing of the Software Product, please contact:
If the Software Product is labeled as an upgrade, you must be properly licensed to use a product identified by TempuCheck as being eligible for the upgrade in order to use the Software Product. A Software Product labeled as an upgrade replaces and/or supplements the product that formed the basis for your eligibility for the upgrade. You may use the resulting upgraded product only in accordance with the terms of this Agreement. If the Software Product is an upgrade of a component of a package of software programs that you licensed as a single product, the Software Product may be used and transferred only as part of that single product package and may not be separated for use on more than one computer.
All title and intellectual property rights in and to the Software Product (including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the Software Product), the accompanying printed materials, and any copies of the Software Product are owned by TempuCheck or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Software Product is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content. All rights not expressly granted are reserved by TempuCheck.
The Software Product may include third-party applications that are licensed to you under this Agreement or under their own terms. Even if such applications are governed by other agreements, the disclaimer, limitations on, and exclusions of damage herein apply to the extent allowed by applicable law.
Restrictions on Transfer:
Without first obtaining TempuCheck’s express written consent, you may not assign your rights and obligations under this Agreement, or redistribute, encumber, sell, lend, rent, lease, sublicense, or otherwise transfer your rights to the Software Product.
Restrictions on Use:
You may not use, copy, or install the Software Product on any system with more than one computer, or permit the use, copying, or installation of the Software Product by more than one user or on more than one computer. If you hold multiple, validly licensed copies, you may not use, copy, or install the Software Product on any system with more than the number of computers permitted by license, or permit the use, copying, or installation by more users, or on more computers than the number permitted by license.
You may not decompile, “reverse-engineer”, disassemble, or otherwise attempt to derive the source code for the Software Product.
You may not use the database portion of the Software Product in connection with any software other than the Software Product
Restrictions on Alteration:
You may not modify the Software Product or create any derivative work of the Software Product or its accompanying documentation. Derivative works include but are not limited to translations.
You may not alter any files or libraries in any portion of the Software Product. You may not reproduce the database portion or create any tables or reports relating to the database portion.
Restrictions on Copying:
You may not copy any part of the Software Product except to the extent that Licensed use inherently demands the creation of a temporary copy stored in computer memory and not permanently affixed on storage medium. You may make one archival copy which must be stored on a medium other than a computer hard drive.
Restrictions on Exports:
You must comply with all domestic and international export laws and regulations that apply to the software, which include restrictions on destinations, end users, and end use.
TempuCheck is not obligated under this Agreement to provide any support services for the software. Any support provided is “as is,” “with all faults,” and without warranty of any kind.
This Agreement does not grant you any rights in connection with any of TempuCheck’s trademarks or service marks.
Separation of Components:
The Software Product is licensed as a single product. Its component parts may not be separated for use by more than one user.
Without prejudice to any other rights, TempuCheck may terminate this Agreement if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the SOFTWARE PRODUCT and all of its component parts.
Limited Software Product Warranty:
For a period of 30 days from the date of shipment or from the date that you download the Software Product, as applicable, TempuCheck warrants that when properly installed and used under normal conditions, the Software Product will perform substantially as advertised
Limited Storage Medium Warranty:
For a period of 90 days from the date of shipment or from the date that you download the Software Product, as applicable, TempuCheck warrants that when properly installed and used under normal conditions, the storage medium on which the Software Product is shipped will be free of material defects in material and workmanship.
Disclaimer of Warranties and Limitation of Liability:
UNLESS OTHERWISE EXPLICITLY AGREED TO IN WRITING BY TEMPUCHECK, TEMPUCHECK MAKES NO OTHER WARRANTlES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHER THAN AS SET FORTH IN THIS AGREEMENT OR IN THE LIMITED WARRANTY DOCUMENTS PROVIDED WITH THE SOFTWARE PRODUCT.
TempuCheck makes no warranty that the Software Product will meet your requirements or operate under your specific conditions of use. TempuCheck makes no warranty that operation of the Software Product will be secure, error free, or free from interruption.
YOU MUST DETERMINE WHETHER THE SOFTWARE PRODUCT SUFFICIENTLY MEETS YOUR REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. YOU BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SOFTWARE PRODUCT TO MEET YOUR REQUIREMENTS. TEMPUCHECK WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE.
UNDER NO CIRCUMSTANCES SHALL TEMPUCHECK, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR ATTORNEYS BE LIABLE TO YOU OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE SOFTWARE PRODUCT, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OTHER NEGLIGENCE OF TEMPUCHECK OR ANY OTHER PARTY, EVEN IF TEMPUCHECK IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS TEMPUCHECK’S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED.
Limitation of Remedies and Damages:
Your remedy for a breach of this Agreement or of any warranty included in this Agreement is the correction or replacement of the Software Product. Selection of whether to correct or replace shall be solely at the discretion of TempuCheck. TempuCheck reserves the right to substitute a functionally equivalent copy of the Software Product as a replacement. If TempuCheck is unable to provide a replacement or substitute Software Product or corrections to the Software Product, your sole alternate remedy shall be a refund of the purchase price for the Software Product, exclusive of any costs for shipping and handling.
Any claim must be made within the applicable warranty period. All warranties cover only defects arising under normal use and do not include malfunctions or failure resulting from misuse, abuse, neglect, alteration, problems with electrical power, acts of nature, unusual temperatures or humidity, improper installation, or damage determined by TempuCheck to have been caused by you. All limited warranties on the Software Product are granted only to you and are nontransferable. You agree to indemnify and hold TempuCheck harmless from all claims, judgments, liabilities, expenses, or costs arising from your breach of this Agreement and/or acts or omissions.
The failure by TempuCheck to enforce any covenant or condition of the Agreement shall not be construed as a waiver of any of TempuCheck’s rights under this Agreement, nor shall such failure operate as a waiver of any breach by you.
The headings of paragraphs herein are included solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions of this Agreement.
Governing Law, Jurisdiction, Attorney’s Fees, and Costs:
This Agreement is governed by the laws of Florida, without regard to Florida’s conflict or choice of law provisions. You agree that any and all legal disputes arising from or relating to this Agreement shall be brought in the 17th Judicial Circuit Court in and for Broward County, Florida. That Court shall have exclusive jurisdiction over any and all such disputes. In the event of any such dispute, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs (at the pretrial, trial, and appellate levels). An award of such attorney’s fees and costs shall include an award of the attorney’s fees and costs incurred in litigating the amount of attorney’s fees (“fees on fees”).
If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
This Agreement constitutes the entire understanding and agreement between You and TempuCheck with regard to all matters contained in it. There are no other agreements, conditions or representations, oral or written, expressed or implied. This Agreement may only be amended in writing and signed by both Parties.
CONSUMER RIGHTS; REGIONAL VARIATIONS. This Agreement describes certain legal rights. You may have other rights, including consumer rights, under the laws of your state, province, or country. Separate and apart from your relationship with Microsoft, you may also have rights with respect to the party from which you acquired the software. This Agreement does not change those other rights if the laws of your state, province, or country do not permit it to do so. For example, if you acquired the software in one of the below regions, or mandatory country law applies, then the following provisions apply to you:
Australia. You have statutory guarantees under the Australian Consumer Law and nothing in this Agreement is intended to affect those rights.
Canada. If you acquired this software in Canada, you may stop receiving updates by turning off the automatic update feature, disconnecting your device from the Internet (if and when you re-connect to the Internet, however, the software will resume checking for and installing updates), or uninstalling the software. The product documentation, if any, may also specify how to turn off updates for your specific device or software.
Germany and Austria.
- Warranty. The properly licensed software will perform substantially as described in any Microsoft materials that accompany the software. However, Microsoft gives no contractual guarantee in relation to the licensed software.
- Limitation of Liability. In case of intentional conduct, gross negligence, claims based on the Product Liability Act, as well as, in case of death or personal or physical injury, Microsoft is liable according to the statutory law.
Subject to the foregoing clause ii., Microsoft will only be liable for slight negligence if Microsoft is in breach of such material contractual obligations, the fulfillment of which facilitate the due performance of this Agreement, the breach of which would endanger the purpose of this Agreement and the compliance with which a party may constantly trust in (so-called “cardinal obligations”). In other cases of slight negligence, Microsoft will not be liable for slight negligence.
DISCLAIMER OF WARRANTY. THE SOFTWARE IS LICENSED “AS IS.” YOU BEAR THE RISK OF USING IT. MICROSOFT GIVES NO EXPRESS WARRANTIES, GUARANTEES, OR CONDITIONS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, MICROSOFT EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
LIMITATION ON AND EXCLUSION OF DAMAGES. IF YOU HAVE ANY BASIS FOR RECOVERING DAMAGES DESPITE THE PRECEDING DISCLAIMER OF WARRANTY, YOU CAN RECOVER FROM MICROSOFT AND ITS SUPPLIERS ONLY DIRECT DAMAGES UP TO U.S. $5.00. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES.
This limitation applies to (a) anything related to the software, services, content (including code) on third party Internet sites, or third party applications; and (b) claims for breach of contract, warranty, guarantee, or condition; strict liability, negligence, or other tort; or any other claim; in each case to the extent permitted by applicable law.
It also applies even if Microsoft knew or should have known about the possibility of the damages. The above limitation or exclusion may not apply to you because your state, province, or country may not allow the exclusion or limitation of incidental, consequential, or other damages.
Please note: As this software is distributed in Canada, some of the clauses in this Agreement are provided below in French.
Remarque: Ce logiciel étant distribué au Canada, certaines des clauses dans ce contrat sont fournies ci-dessous en français.
EXONÉRATION DE GARANTIE. Le logiciel visé par une licence est offert « tel quel ». Toute utilisation de ce logiciel est à votre seule risque et péril. Microsoft n’accorde aucune autre garantie expresse. Vous pouvez bénéficier de droits additionnels en vertu du droit local sur la protection des consommateurs, que ce contrat ne peut modifier. La ou elles sont permises par le droit locale, les garanties implicites de qualité marchande, d’adéquation à un usage particulier et d’absence de contrefaçon sont exclues.
LIMITATION DES DOMMAGES-INTÉRÊTS ET EXCLUSION DE RESPONSABILITÉ POUR LES DOMMAGES. Vous pouvez obtenir de Microsoft et de ses fournisseurs une indemnisation en cas de dommages directs uniquement à hauteur de 5,00 $ US. Vous ne pouvez prétendre à aucune indemnisation pour les autres dommages, y compris les dommages spéciaux, indirects ou accessoires et pertes de bénéfices.
Cette limitation concerne:
- tout ce qui est relié au logiciel, aux services ou au contenu (y compris le code) figurant sur des sites Internet tiers ou dans des programmes tiers; et
- les réclamations au titre de violation de contrat ou de garantie, ou au titre de responsabilité stricte, de négligence ou d’une autre faute dans la limite autorisée par la loi en vigueur.
Elle s’applique également, même si Microsoft connaissait ou devrait connaître l’éventualité d’un tel dommage. Si votre pays n’autorise pas l’exclusion ou la limitation de responsabilité pour les dommages indirects, accessoires ou de quelque nature que ce soit, il se peut que la limitation ou l’exclusion ci-dessus ne s’appliquera pas à votre égard.
EFFET JURIDIQUE. Le présent contrat décrit certains droits juridiques. Vous pourriez avoir d’autres droits prévus par les lois de votre pays. Le présent contrat ne modifie pas les droits que vous confèrent les lois de votre pays si celles-ci ne le permettent pas.