This EULA limits our liability and is governed by an arbitration agreement and venue agreement. Please read below as these terms affect your rights.
1. The copyrights in this software and any visual or audio work distributed with the software belong to NCH Software and others listed in the about box. All rights are reserved. Installation of this software and any software bundled with or installed-on-demand from this software, including shortcuts and start menu folders, is licensed only in accordance with these terms. These copyrights do not apply to any creative work made by you, the user.
2. By installing, using or distributing the software you, on your own behalf and on behalf of your employer or principal, agree to these terms. If you do not agree to any of these terms, you may not use, copy, transmit, distribute, nor install this software - return it to the place of purchase within 14 days to receive a full refund.
3. This software, and all accompanying files, data and materials, are distributed "as is" and with no warranties of any kind, whether express or implied except as required by law. If you intend to rely on this software for critical purposes you must test it fully prior to using it, install redundant systems and assume any risk.
4. We will not be liable for any loss arising out of the use of this software including, but not limited to, any special, incidental or consequential loss. Your entire remedy against us for all claims is limited to receiving a full refund for the amount you paid for the software.
5. You may not use this software in any circumstances where there is any risk that failure of this software might result in a physical injury or loss of life. You may not use this software if you do not regularly backup your computer, or do not have antivirus and firewall software installed on the computer, or keep sensitive data unencrypted on your computer. You agree to indemnify us from any claims relating to such use.
6. You may copy or distribute the installation file of this software in its complete unaltered form but you may not, under any circumstances, distribute any software registration code for any of our programs without written permission. In the event that you do distribute a software registration code, you will be liable to pay the full purchase price for each location where the unauthorized use occurs.
7. Use of data collected by the software is subject to the NCH Software Privacy Statement which allows automatic anonymized collection of usage statistics in limited circumstances.
8. Choice of Law. If you reside in the United States, your relationship is with NCH Software, Inc, a United States company, and this agreement is governed by the laws and courts of Colorado. If you reside anywhere in the world outside of the United States, your relationship is with NCH Software Pty Ltd, an Australian company, and this agreement is governed by the laws and courts of the Australian Capital Territory. Such courts have continuing and exclusive jurisdiction over any dispute between you and us, regardless of the nature of the dispute.
9. U.S. Customers Only: Arbitration Agreement and Class Action Waiver: PLEASE READ THIS CAREFULLY. IT MAY AFFECT YOUR RIGHTS.
If you reside in the United States, NCH Software and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. References to "NCH" "you," and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns. This arbitration agreement does not preclude you from bringing issues to the attention of U.S. federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to NCH should be addressed to:
NCH Software, Inc.
6120 Greenwood Plaza Blvd, Ste 120
Greenwood Village CO, 80111
("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If NCH and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or NCH may commence an arbitration proceeding. The amount of any settlement offer made by NCH or you shall not be disclosed to the arbitrator.
A. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of the arbitration provision. Unless NCH and you agree otherwise, any arbitration hearings will take place in Greenwood Village Colorado. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision. NCH will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse NCH for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
B. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND NCH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and NCH agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
C. Notwithstanding any provision in this Agreement to the contrary, we agree that if NCH makes any future change to this arbitration provision (other than a change to the Notice Address) you may reject any such change by sending us written notice within 30 days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
D. To opt out of this Arbitration Agreement and class action waiver send an Opt Out notice to the Notice Address stating "I am electing to opt out of the Arbitration Agreement and class action waiver contained in the Legal Terms applicable to my purchase of an NCH product." Your Opt Out Notice must include the date and proof of purchase. The Opt Out Notice must be postmarked no later than thirty (30) days after the date of purchase. A separate Opt Out Notice must be sent for each product purchased.