Carefully read all provisions of the Software and Hardware License Agreement, including the MANDATORY ARBITRATION and CLASS ACTION WAIVER provisions set forth herein.
This Software and Hardware License Agreement (“Pangolin License Agreement”) constitutes a legally enforceable contractual agreement between you and Pangolin Laser Systems, Inc. (“Pangolin”) as licensor of the Software, Hardware, Pangolin-Provided Show Elements (“PPSEs”) and Related Materials that you are receiving.
If you do not agree to all the terms and conditions of this Pangolin License Agreement, do not use the Software, Hardware, PPSEs and Related Materials. WITHOUT LIMITATION, BY AFFIRMATIVELY CLICKING ON THE BUTTON LABELED “I AGREE” OR SUCH SIMILAR LABELS AS MAY BE DESIGNATED BY PANGOLIN, AND/OR BY OPENING A PACKAGE, DOWNLOADING A PRODUCT OR OTHERWISE USING ANY OF THE SOFTWARE, HARDWARE, PPSEs OR RELATED MATERIALS, YOU ARE CONSENTING TO BE BOUND BY THIS PANGOLIN LICENSE AGREEMENT, AS WELL AS ADDITIONAL TERMS AND POLICIES REFERENCED HEREIN AND/OR MADE AVAILABLE VIA HYPERLINK, AND ALL APPLICABLE LAWS AND REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH APPLICABLE LOCAL LAWS.
If you have purchased a Software or Hardware product from Pangolin, then all provisions in this Pangolin License Agreement shall apply. Otherwise, if Pangolin has authorized you to make evaluation or demonstration (“Demo”) use of Software prior to purchasing it, all of the Software-related provisions contained herein shall apply thereto.
A. “Pangolin License Agreement” means this agreement between you and Pangolin that provides you with the authorization to use the Software, Hardware, PPSEs and Related Materials, subject to the terms and conditions herein.
B. “Authorized Pangolin Dealer” means Pangolin and those sellers that Pangolin has expressly authorized to sell its products. Authorized Pangolin Dealers should include a conspicuous and prominent notice in/on their sales and marketing materials stating that they are authorized Pangolin dealers.
C. “Hardware” means any hardware board, cable adapter, lens and all related physical materials manufactured by Pangolin. This does not include products that Pangolin re-sells but does not manufacture (such as the APC-40 console).
D. “Intellectual Property” or “Pangolin Intellectual Property” means Pangolin’s proprietary rights in the Software, Hardware, PPSEs and Related Materials, including but not limited to patent rights (including patents, patent applications and disclosures), trademark or service mark rights (including all rights in applications or registrations for marks), copyright rights (including copyright rights in any applications or registrations), moral rights, know-how, and trade secret rights together with all causes of action related thereto as recognized in any country or jurisdiction in the world.
E. “Prohibited Use” means any use of the Pangolin Software, Hardware, PPSEs and Related Materials in violation of this Pangolin License Agreement or other Pangolin Intellectual Property rights, including, but not limited to, the unauthorized uses set forth herein.
F. “PPSEs” means the Pangolin-Provided Show Elements, including frames and animations, layouts, bitmap backgrounds, emoticons, show instructions, workspaces and other support items, that are included with Software distribution media and that may also be provided to you in subsequent updates.
G. “Related Materials” means anything Pangolin provides you in conjunction with this Pangolin License Agreement other than the Software, Hardware and PPSEs, including but not limited to user manuals, help files, tutorial videos, and example bitmaps.
H. “Software” means the software, data, data files, image files, shows and documentation distributed in conjunction with or accompanying this Pangolin License Agreement, whether on CD, DVD, or any other media or received by download or other electronic transmission from Pangolin.
I. “Genuine” means a product manufactured by Pangolin Laser Systems, Inc. located in the USA, or manufactured by Pangolin d.o.o. located in Slovenia, as opposed to a counterfeit (aka fake, pirated) product manufactured by a third party that may resemble a Pangolin product.
1. TERMS AND SCOPE: Your access to the Software, Hardware, PPSEs and Related Materials, whether through purchase or as a Demo, comes with certain restrictions. Specifically, Pangolin grants you, as a licensee, only a limited, non-exclusive right to use the Software, PPSEs and Related Materials in accordance with the terms, conditions and restrictions of this Pangolin License Agreement. According to its express terms, except for qualifying Hardware product purchases, this Pangolin License Agreement also grants you with a limited, non-exclusive right to possess and use the Hardware.
You own any media on which the Software is recorded, however Pangolin retains title to the Software. The license shall not be considered a “sale” of the Software. As such, Pangolin retains all right, title and interest in and to the Software, Hardware (except for qualifying Hardware product purchases), PPSEs and all Pangolin Intellectual Property. You receive no title or ownership, or rights other than those specifically granted herein. Unless otherwise set forth herein, licensee will not: (a) modify, create derivative works from, distribute or sublicense the Software, Hardware, PPSEs and Related Materials; (b) in any way allow third parties to exploit the Software, Hardware, PPSEs and Related Materials; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code, Hardware, PPSEs and Related Materials.
2. ONE YEAR HARDWARE WARRANTY: Pangolin warrants all Hardware manufactured by Pangolin to be free of defects in materials and workmanship under normal use for a period of one (1) year from the date of purchase. Note that Pangolin resells products that are not manufactured by Pangolin (for example the APC-40 console). Products not manufactured by Pangolin are covered by the warranties, if any, provided by the those manufacturers.
3. DISCLAIMER OF ADDITIONAL WARRANTIES: ALL PRODUCTS, SERVICES, PRODUCT/SERVICE DESCRIPTIONS, SOFTWARE, SOFTWARE UPDATES, HARDWARE, PPSEs AND RELATED MATERIALS ARE PROVIDED BY PANGOLIN ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. PANGOLIN AND ITS REPRESENTATIVES OR AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OR RELIABILITY OF THE PRODUCTS, SERVICES, SOFTWARE, SOFTWARE UPDATES, HARDWARE, PPSEs AND RELATED MATERIALS, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF SAME IS AT YOUR SOLE RISK. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, PANGOLIN AND ITS REPRESENTATIVES OR AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH REGARD TO SOFTWARE, SOFTWARE UPDATES, HARDWARE, PPSEs, RELATED MATERIALS, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, UNLESS OTHERWISE SPECIFIED IN WRITING. PANGOLIN AND ITS REPRESENTATIVES OR AGENTS DO NOT WARRANT THAT THE PRODUCTS, SERVICES, SOFTWARE, SOFTWARE UPDATES, HARDWARE, PPSEs, RELATED MATERIALS, PANGOLIN’S SERVERS AND ELECTRONIC COMMUNICATIONS SENT FROM PANGOLIN AND ITS REPRESENTATIVES OR AGENTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
4. SOFTWARE UPDATES: Pangolin typically publishes multiple updates per year on Software products. These Software updates are provided to users who have registered their products with Pangolin (“Registered Users”) free-of-charge when downloaded from Pangolin websites. When Software updates are ordered on CD, DVD or USB media, Pangolin may charge a nominal fee to cover the cost of the media, shipping and handling. These Software updates may be required to maintain Software compatibility, provide security updates or fixes, or offer new features and functionality. Additionally, Software products including QuickShow and BEYOND must be updated periodically, to ensure their continued operation. Because of this, Pangolin recommends that you obtain and install a Software update at least once per year. If you have a fixed installation or long-term touring operation where periodic Software updates would be impractical, please contact Pangolin to obtain a file that will enable the Software to operate perpetually without updates.
5. ADDITIONAL BENEFITS FOR PURCHASES MADE THROUGH AUTHORIZED DEALERS: If you purchased a Genuine software product from an Authorized Pangolin Dealer (which includes Pangolin), Pangolin offers you a 90-day money-back guarantee. If you are dissatisfied in any way, return the Software and any included Hardware by the ninetieth (90th) day in undamaged, resalable condition to the company from whom you purchased it via Registered Mail or similar insurable, traceable delivery service (example: FedEx, DHL, UPS, etc). Any payments you made to an Authorized Pangolin Dealer will be refunded, less any shipping or related fees incurred. Your purchase from an Authorized Pangolin Dealer may also entitle you to other benefits, including the materials available on the Pangolin Cloud. This ninety (90)-day money back guarantee and other benefits for purchases from Authorized Pangolin Dealers are non-transferable and do not apply to any purchases made from any sellers other than Authorized Pangolin Dealers.
6. DISPUTE RESOLUTION, MANDATORY ARBITRATION AND CLASS ACTION WAIVER: PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS THAT YOU AND PANGOLIN HAVE AGAINST EACH OTHER ARE RESOLVED.
If a dispute arises between you and Pangolin, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. Disputes between you and Pangolin may always be reported via email to firstname.lastname@example.org, or by calling +1-407-299-2088, Monday through Friday from 10:00 AM EST to 6:00 PM EST.
Otherwise, you and Pangolin agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the Pangolin License Agreement will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
You agree that the laws of the State of Florida (USA), without regard to principles of conflict of laws, will govern this Pangolin License Agreement and any claim or dispute that has arisen or may arise between you and Pangolin, except as otherwise stated herein.
YOU AND PANGOLIN EACH AGREE THAT ANY AND ALL DISPUTES OR CLAIMS THAT HAVE ARISEN OR MAY ARISE BETWEEN YOU AND PANGOLIN RELATING IN ANY WAY TO OR ARISING OUR OF THIS OR PREVIOUS VERSIONS OF THE PANGOLIN LICENSE AGREEMENT, OTHER THAN INTELLECTUAL PROPERTY CLAIMS, SHALL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in court if the claim is worth less than $10,000 and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this agreement to arbitrate.
YOU AND PANGOLIN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND PANGOLIN AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Pangolin License Agreement as a court would. All issues subject to arbitration are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Pangolin License Agreement, or the interpretation of the prohibition of class and representative actions and non-individualized relief, shall be for a court of competent jurisdiction to decide.
If you are based in the United States, the arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this agreement to arbitrate. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word “arbitrator” herein shall not be construed to prohibit more than one arbitrator from presiding over an arbitration, rather the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this agreement to arbitrate. If you are based internationally, the arbitration will be conducted under the rules of the International Chamber of Commerce, International Court of Arbitration.
A party who intends to seek arbitration must first send to the other a notice of dispute (“Notice”). The Notice to Pangolin should be sent in writing and delivered by personal service (which shall include delivery by delivery service and overnight delivery service), sent us and e-mail (but only if receipt of the e-mail is confirmed by Pangolin), or mailed by United States certified mail as follows: Pangolin Laser Systems, Inc., 9501 Satellite Boulevard, Suite 109, Orlando, FL 32837 USA, Attn: Office Manager, Re: Notice of Dispute. Pangolin will send any Notice to you via certified mail to the shipping address you have provided, or via electronic mail (but only if receipt of the e-mail is confirmed by you). It is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and Pangolin are unable to resolve the claims described in the Notice within thirty (30) days after the Notice is sent, you or Pangolin may initiate arbitration proceedings. A form for initiating U.S.-based arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Pangolin at the following address: Pangolin Laser Systems, Inc., 9501 Satellite Boulevard, Suite 109, Orlando, FL 32837 USA.
In the event Pangolin initiates an arbitration against you, it will send a copy of the completed form to the shipping or electronic mail address we have on file. Any settlement offer made by you or Pangolin shall not be disclosed to the arbitrator.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Pangolin may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Pangolin subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Pangolin may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Florida, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Pangolin user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules or the ICC (as applicable), unless otherwise stated in this agreement to arbitrate. If the value of the relief sought is $10,000 or less, at your request, Pangolin will pay all filing, administration, and arbitrator fees associated with the arbitration.
Any request for payment of fees by Pangolin for U.S.-based arbitration proceedings should be submitted by mail to the AAA along with your demand for Arbitration and Pangolin will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of accessing arbitration will be prohibitive as compared to the costs of accessing a court for purposes of pursuing litigation on an individual basis, Pangolin will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the costs of accessing arbitration from being prohibitive. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Pangolin for all fees associated with the arbitration paid by Pangolin on your behalf that you otherwise would be obligated to pay under the applicable arbitration rules.
With the exception of any of the provisions regarding “Prohibition of Class and Representative Actions” and “Non-Individualized Relief,” if an arbitrator or court decides that any part of this arbitration agreement is invalid or unenforceable, the other parts of this arbitration agreement shall still apply. If an arbitrator or court decides that any of the provisions regarding “Prohibition of Class and Representative Actions” and “Non-Individualized Relief” is/are invalid or unenforceable, then the entirety of this agreement to arbitrate shall be null and void. The remainder of this Pangolin License Agreement and this arbitration agreement, including, but not limited to, the legal disputes provisions, shall continue to apply.
YOU CAN CHOOSE TO REJECT THIS ARBITRATION AGREEMENT BY MAILING PANGOLIN A WRITTEN “OPT-OUT” NOTICE. THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU FIRST ACCEPT THIS PANGOLIN LICENSE AGREEMENT. YOU MUST MAIL THE OPT-OUT NOTICE TO PANGOLIN LASER SYSTEMS, INC., ATTN: Pangolin Laser Systems, Inc., ATTN: Legal Department, RE: OPT-OUT NOTICE, 9501 Satellite Boulevard, Suite 109, Orlando, FL 32837 USA. YOU MUST PROVIDE YOUR NAME, ADDRESS (INCLUDING ZIP CODE) AND E-MAIL ADDRESS.
Notwithstanding any provision in this Pangolin License Agreement to the contrary, you and we agree that if we make any amendment to the arbitration agreement in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Pangolin prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the agreement to arbitrate that have arisen or may arise between you and Pangolin. We will notify you of amendments to this agreement to arbitrate by posting the amended terms online at least thirty (30) days prior to the effective date of the amendments.
For all Intellectual Property claims or, in the event that this agreement to arbitrate is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Pangolin must be resolved exclusively by a state or federal court located in Orange County, Florida. You and Pangolin agree to submit to the personal jurisdiction of the courts located within Orange County, Florida for the purpose of litigating all such claims or disputes. Nothing contained herein shall exclude any right you may have as a consumer under your local law to request or require an alternative jurisdiction. In connection with any litigation, including appellate proceedings, arising out of or under this Pangolin License Agreement, Pangolin shall be entitled to recover reasonable out-of-pocket costs and reasonable attorneys’ fees.
You agree to file any claim regarding any aspect of this Pangolin License Agreement within two (2) years of the time in which the events giving rise to such claim took place, otherwise, any such claim is waived and permanently barred. You agree that any cause of action arising out of use of or related in any way to the Websites, the Pangolin software, software updates, hardware, PPSEs or Related Materials must commence within two (2) years after the cause of action, otherwise, any such cause of action is waived and permanently barred.
7. REGISTRATION; E-MAIL COMMUNICATION ABOUT UPDATES AND PROMOTIONAL MATERIALS: In order to access Pangolin products and services, and to take advantage or use some of the features offered on our family of websites, you may be required to register and/or provide personally identifiable information. Additionally, by completing a Pangolin registration form, order form and/or downloading Software updates, you are giving your consent to receive information about Software updates in addition to promotional materials, offers and newsletters from Pangolin, sent occasionally via e-mail.
8. MUSIC RIGHTS NOTICE: As part of the Software, shows may be included for which the laser artist has suggested particular songs or music. Pangolin warrants that it has obtained appropriate music rights to any CD tracks, MIDI or waveform files which may be furnished on the Software distribution media (e.g., disks or CD) or download file, and that it has and will maintain the full power and authority to grant the intellectual property and other rights granted herein without the further consent of any third-party. For all other music, including commercial songs, Pangolin and the laser artist do not provide and are not responsible for performance, synchronization, reproduction or any other music-related rights. YOU ARE SOLELY RESPONSIBLE FOR SECURING ALL NECESSARY MUSIC-RELATED INTELLECTUAL PROPERTY RIGHTS AND CLEARANCES PRIOR TO PLAYING MUSIC IN SYNCHRONIZATION WITH ANY SHOWS INCLUDED WITH THE SOFTWARE, with the exception of music furnished on the Software distribution media or download file.
9. LASER SAFETY NOTICE AND DISCLAIMER: Pangolin does not warrant the use of the Software and Hardware as a means of implementing safety features. It is possible for the Software and Hardware to fail in such a way so as to increase the risk of unsafe laser exposure. YOU ARE, THEREFORE, COMPLETELY AND SOLELY RESPONSIBLE FOR, WITHOUT LIMITATION, SCAN-FAIL SAFEGUARDS, BEAM STOPS, AUDIENCE SEPARATION DISTANCES, AIRCRAFT OBSERVERS, MEASUREMENTS AND CALCULATIONS AND/OR ANY OTHER MEASURES NECESSARY TO PREVENT THE SOFTWARE AND HARDWARE FROM PRESENTING A LASER SAFETY HAZARD.
10. USE OF PANGOLIN-PROVIDED SHOW ELEMENTS (“PPSEs”): In general, PPSEs may be included in productions that are for your own use. However, PPSEs may not be sold or transferred, in whole or in part, to others who are not licensed to use Pangolin Software. Examples of prohibited transfers to others include: (a) direct copying of PPSEs; and (b)indirect copying via transferring files you create which include PPSEs; and (c) recording shows containing PPSEs onto laser-projectable formats. This provision does not apply to: (a) show elements that you create; (b) distribution of PPSEs in video and film; and (c) PPSEs owned by others when transferred with the owner’s permission. It is your sole responsibility to confirm that anyone you provide PPSEs to has the appropriate licenses from Pangolin to use such PPSEs. The foregoing does not apply to show elements that you create; distribution of PPSEs in video, film or similar non-laser-projectable media; PPSEs owned by others when transferred with the owner’s permission; PPSEs in the public domain such as ILDA test pattern frames; and PPSEs that have additional or differing restrictions detailed in text (.TXT) files located in the same directory as the related frame and show files.
11. LIMITATION OF LIABILITY: PANGOLIN AND ITS REPRESENTATIVES OR AGENTS WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSS OF USE OF ANY KIND ARISING OR RESULTING FROM THE USE OF ANY PANGOLIN PRODUCTS, SERVICES, SOFTWARE, SOFTWARE UPDATES, HARDWARE, PPSEs AND RELATED MATERIALS, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES OR OTHER COSTS, EXPENSES OR DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR OR RELATED TO, UNAPPROVED PRODUCT MODIFICATIONS, IMPROPER USE OF PANGOLIN PRODUCTS AND SERVICES, MUSIC RIGHTS, LASER SAFETY RELATED DAMAGES, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS), EVEN IF PANGOLIN AND ITS REPRESENTATIVES OR AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU ASSUME THE ENTIRE COSTS OF ALL NECESSARY SERVICING, REPAIRS, SAFETY MEASURES OR CORRECTIONS. IN NO EVENT SHALL PANGOLIN’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SOFTWARE OR HARDWARE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, OUR LIABILITY IN SUCH JURISDICTION SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
12. INDEMNIFICATION: You agree, at your own expense, to defend, indemnify and hold harmless Pangolin (including its officers, directors, employees and agents) from and against any third-party liabilities, claims, demands or suits asserting a claim or claims against Pangolin as a result of injury caused by your use of the Software, Hardware, PPSEs or Related Materials, or any claim relating to your use of the Software, Hardware, PPSEs or Related Materials in a manner not contemplated by or forbidden by Pangolin’s instructions or documentation, in violation of this Pangolin License Agreement and your warranties contained herein, or in violation of applicable law, rule or regulation. You agree to pay all damages awarded or agreed to under a settlement of such claim (provided, however, you may not enter into any settlement that imposes a financial obligation or admission of liability on Pangolin without Pangolin’s prior written consent).
13. NON-PAYMENT: Pangolin may provide you with its products, including, without limitation, Software and Hardware, even though the mutually-agreed-upon purchase price has not been fully paid. For example, demonstration-related use of Software, systems provided on credit or time payments, or systems provided in return for goods or services not yet furnished by you. In the event of non-payment or non-deliverance of goods or services, Pangolin may require prompt return and cessation of use of the Software and Hardware at any time, at your sole expense. Pangolin may also electronically terminate your ability to use the Software, Hardware, PPSEs and/or Related Materials until the mutually-agreed-upon price has been fully paid.
14. INTELLECTUAL PROPERTY RIGHTS: With the exception of those rights expressly granted herein, all rights to the Hardware, Software, PPSEs and all other Related Materials are retained by Pangolin. The Software is owned and copyrighted by Pangolin. You may not use, copy or transfer the Software, Hardware, PPSEs or Related Materials except as expressly provided in this Pangolin License Agreement. You may not decompile, reverse engineer, disassemble or otherwise reduce the Software (including Software on the Hardware board) to a human-perceivable form, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
15. PERMITTED COPIES AND MULTIPLE INSTALLATIONS: The Software may be installed to hard disk or similar mass storage device. The Software may be installed on more than one computer provided that (a) you maintain control over the computer(s) to prevent unauthorized copying of the Software; (b) you have obtained a license from Pangolin to operate the Software at each location; and (c) only one (1) computer and one set of Pangolin Hardware (when included with the Software) is in use at any one time. This provision is intended for your convenience in carrying or shipping only the Pangolin Hardware rather than an entire computer. This provision is not to be used as a means of violating this Pangolin License Agreement, creating illegal copies, working on two copies of the Software simultaneously, or any other prohibited uses.
16. PROHIBITED USES: AS APPLICABLE, YOU AGREE NOT TO USE, OR ALLOW A THIRD PARTY TO USE, ANY PANGOLIN SOFTWARE, HARDWARE, PPSEs, RELATED MATERIALS, PRODUCTS, SERVICES, APPLICATIONS OR TECHNOLOGIES IN VIOLATION OF APPLICABLE INTERNATIONAL, FEDERAL, STATE OR LOCAL LAWS, RULES, REGULATIONS AND REQUIREMENTS, INCLUDING, WITHOUT LIMITATION, THE TELEPHONE CONSUMER PROTECTION ACT (42 U.S.C. ß 227), ITS IMPLEMENTING REGULATIONS AND THE GUIDELINES SET FORTH BY THE MOBILE MARKETING ASSOCIATION. In addition to those set forth elsewhere herein, prohibited uses include, but are not limited to modifications to the Software or Hardware made for the purpose of evading identification or copy protection, intercepting files, data streams or function calls for the purpose of evading security, converting image data into formats not reasonably contemplated and expressly authorized in writing by Pangolin, and/or otherwise using Pangolin products for anything other than the intended purpose. IN ADDITION, USING PANGOLIN PRODUCTS IN VIOLATION OF THE TERMS SET FORTH IN THIS PANGOLIN LICENSE AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE INTENT TO COPY FEATURES OR TO CREATE PRODUCTS THAT DUPLICATE FUNCTIONALITY IS STRICTLY PROHIBITED. You shall not permit the Software or Hardware to be copied by, given to, or otherwise distributed to a third-party for a prohibited use. Pangolin’s Software is specifically designed to work with the Pangolin Hardware, and it is a violation of this Pangolin License Agreement to load Pangolin Software designed to run on the Hardware onto any other hardware, or to load or use unauthorized software on the Pangolin Hardware. You shall strictly control access to the Software and Hardware so that no prohibited use occurs, with or without your knowledge or consent. YOU ARE SOLELY RESPONSIBLE FOR ANY PROHIBITED USES THAT VIOLATE THIS PANGOLIN LICENSE AGREEMENT, REGARDLESS OF YOUR INTENT AT THE TIME THE VIOLATION IS COMMITTED, INCLUDING, WITHOUT LIMITATION, BOTH NEGLIGENT ACTIONS AND OMISSIONS.
17. PROOF OF PURCHASE: As a condition of providing support and updates, Pangolin may require proof of purchase such as communication of the unique serial number in your Software and Hardware, as well as communication of the name of the person, dealer or entity that sold you the Pangolin product.
18. SUPPORT AND TRAINING. Pangolin attempts to provide commercially reasonable support for Registered Users at no additional cost, in order to assist them in understanding how to use Pangolin’s Software, Hardware and PPSEs. Pangolin cannot guarantee that every issue will be resolved, or that every issue will be appropriate for resolution by Pangolin. Moreover, Pangolin provides support for the current version of its Software (which Registered Users can download at no charge from Pangolin’s web site), but has no obligation to provide support for prior versions.
Support is generally provided during Pangolin’s normal office hours, which are from 10 AM to 6 PM Eastern time, excluding holidays and weekends. Although Pangolin does not guarantee that support will be provided outside of these normal office hours, Registered Users are free to contact us at any time, since we are often in the office and available.
For urgent matters, Pangolin encourages Registered users to contact us by telephone using the telephone numbers found on the Pangolin web site under “Support”, and also found in the ABOUT box of the Software. For non-urgent matters, Registered Users may create a “support ticket”, or may contact us by email, or use our support forum, as described in the Support section of the web site.
In addition to the support described above, Pangolin also holds training sessions from time to time, typically several times per year, in different cities around the world. The training sessions are provided at no additional cost for Registered Users, but attendees must arrange for transportation, lodging and any other expenses they may incur at their own expense.
Pangolin endeavors to handle support issues with its customers professionally and in a respectful manner, and expects its customers to do the same. Pangolin reserves the right to discontinue sales, service, support and training to any customer who, at Pangolin’s sole discretion, does not interact with Pangolin with the same professional courtesy and respect that Pangolin provides, or that otherwise abuses the support Pangolin provides.
19. AGREEMENT LENGTH AND TERMINATION PROCEDURE: This Pangolin License Agreement is effective until terminated. You may terminate this Pangolin License Agreement at any time by sending written notice to Pangolin Laser Systems, Inc. If you fail to comply with any provisions of this Pangolin License Agreement, it will terminate immediately without notice from Pangolin. Upon termination, whether by you (voluntarily) or by Pangolin (due to violation of this Pangolin License Agreement), the licenses granted herein will cease and you must (a) return the Software, Hardware, PPSEs and all Related Materials to Pangolin, (b) erase all copies of the Software, PPSEs and Related Materials, including backups and archival copies in your possession, custody or control, and (c) send a certified or traceable (e.g., FedEx) letter to Pangolin signed by you attesting to your compliance with this termination provision.
In addition to termination, Pangolin reserves the right to pursue all claims for violation of Intellectual Property or other rights and will pursue such actions as are available at law or in equity for continuing, flagrant or egregious violations. In the event of a material breach of this Pangolin License Agreement, you understand that Pangolin may remotely terminate your ability to use the Software, Hardware, PPSEs and/or Related Materials and that such termination may be temporary or permanent, at Pangolin’s sole discretion.
Any and all provisions of this Pangolin License Agreement that by their nature are intended to survive termination to fulfill their essential purpose(s), shall so survive.
20. NOTICES: All notices, requests, consents and other communications required, or permitted hereunder shall be provided in writing and delivered by personal service (which shall include delivery by delivery service and overnight delivery service), sent via e-mail to contact[at]pangolin.com (but only if receipt of the e-mail is confirmed by the receiving party), or mailed by United States certified mail as follows: Pangolin Laser Systems, Inc., 9501 Satellite Boulevard, Suite 109, Orlando, FL 32837 USA. If for you, at the shipping or electronic mail address you have provided. Such communications shall be effective on receipt when personally delivered or confirmed via e-mail, and effective three (3) business days following deposit with the mail carrier for all other allowable forms of notice.
21. GOVERNING LAW: Any claim, dispute or controversy relating to this Pangolin License Agreement shall be governed and construed exclusively in accordance with the laws of the United States and the State of Florida, without regard to any jurisdiction’s conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply. If, for any reason, a court of competent jurisdiction finds any provision of this Pangolin License Agreement to be unenforceable, that provision of this Pangolin License Agreement shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the remainder of this Pangolin License Agreement shall continue in full force and effect. Venue and jurisdiction for any legal action shall be in the state or federal courts for Orange County, Florida.
22. NO WAIVER AND SEVERABILITY: Pangolin’s failure to exercise or enforce any right or provision of the Pangolin License Agreement shall not operate as a waiver of such right or provision. Pangolin’s performance under the Pangolin License Agreement is subject to existing laws and legal process, and nothing contained in the Pangolin License Agreement is in derogation of our right to comply with governmental, court and law enforcement requirements with regards to your use of our products and services. If any provision or portion of the Pangolin License Agreement is held illegal, invalid, or unenforceable, in whole or in part, it shall be modified to the minimum extent necessary to correct any deficiencies or replaced with a provision which is as close as is legally permissible to the provision found invalid or unenforceable and the replacement, if any, shall not affect the legality, validity or enforceability of any other provisions or portions of the Pangolin License Agreement, and all other provisions of the Pangolin License Agreement shall remain in full force and effect.
23. USER SUGGESTIONS: Unless otherwise expressly agreed to in writing by Pangolin, all suggestions, solutions, improvements, corrections and other contributions related to the any Pangolin products and services (“User Suggestions”) are freely offered to Pangolin without any claim to ownership or confidentiality by you or any obligation for implementation by Pangolin. In the event that Pangolin implements a User Suggestion, such implementation shall be owned by Pangolin and nothing in this Pangolin License Agreement shall preclude Pangolin from implementing and using the know-how, techniques or procedures acquired by Pangolin.
24. INDEPENDENT CONTRACTORS: The parties to this Pangolin License Agreement are independent contractors, and this Pangolin License Agreement does not give rise to any partnership, joint venture, employment, franchise, or agency between the parties. Unless expressly authorized to do so under in this Pangolin License Agreement, no party will have the power to bind any other party or incur obligations on any other party’s behalf without that party’s prior written consent.
25. NO THIRD-PARTY BENEFICIARIES AND ASSIGNMENT: No provision of this Pangolin License Agreement is intended or shall be construed to provide or create any third-party beneficiary right or any other right of any kind in any person or entity, other than the parties and their successors and assigns.
Neither party may assign this Pangolin License Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Pangolin License Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Pangolin License Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
26. ENTIRE AGREEMENT: This Pangolin License Agreement constitutes the entire agreement with respect to the use of Pangolin products and services, and supersedes all prior or contemporaneous understandings or agreements, written or verbal, regarding such subject matter. In the event of any conflict between the terms of this Pangolin License Agreement and any other Pangolin terms, legal notices, agreements or policies, the terms of this Pangolin License Agreement shall govern. NO REPRESENTATIVE, EMPLOYEE OR DEALER SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES PROVIDED HEREIN. No amendment to or modification of the Pangolin License Agreement shall be binding unless in writing and signed by Pangolin Laser Systems, Inc. The parties agree that the terms of this Pangolin License Agreement shall not be construed in favor of or against either party by reason of authorship.
27. ADDITIONAL ASSISTANCE: If you have any questions or concerns about the Pangolin License Agreement or any Pangolin products or services, please send an e-mail to us, call us at +1-407-299-2088, or write to us at:
Pangolin Laser Systems, Inc., 9501 Satellite Boulevard, Suite 109, Orlando, FL 32837 USA.
28. ELECTRONIC SIGNATURE: You acknowledge and agree that by accessing this Pangolin License Agreement via, without limitation, accessing the Software and/or links made available on, via or within the Pangolin family of websites, that you expressly assent to the terms hereof electronically by clicking on the button labeled “I Agree” or such similar labels as may be designated by Pangolin to accept this Pangolin License Agreement. You acknowledge and agree that by doing so, you are affixing your electronic signature, you are submitting a legally binding electronic signature and you are entering into a legally binding contract and that Pangolin is affixing its electronic signature by making this Pangolin License Agreement available on Pangolin’s web site. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Pangolin License Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED, COMPLETED OR OFFERED BY PANGOLIN. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
Effective: May 25, 2018