End-User License Agreement
Lexmark Toolbar requires that you accept the following End-User License Agreement before installation can proceed:
LEXMARK SOFTWARE LICENSE AGREEMENT
PLEASE READ CAREFULLY BEFORE SELECTING THE "YES" OR "AGREE" BUTTON ON THIS PAGE: This Software License Agreement ("License Agreement") is a legal agreement between you (either an individual or a single entity) and Lexmark International, Inc. ("Lexmark") that, to the extent your Lexmark product or Software Program is not otherwise subject to a written software license agreement between you and Lexmark or its suppliers, governs your use of any Software Program installed on or provided by Lexmark for use in connection with your Lexmark product. The term "Software Program" includes machine-readable instructions, audio/visual content (such as images and recordings), and associated media, printed materials and electronic documentation.
BY SELECTING THE "YES" OR "AGREE" BUTTON, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IF YOU DO NOT SO AGREE, SELECT THE "NO" OR "DISAGREE" BUTTON ON THIS PAGE AND DO NOT INSTALL, COPY, DOWNLOAD, OR OTHERWISE USE THE SOFTWARE PROGRAM. IF YOU ARE INSTALLING THIS SOFTWARE PROGRAM FOR USE BY OTHER PARTIES, YOU AGREE TO INFORM THE USERS THAT USE OF THE SOFTWARE PROGRAM INDICATES ACCEPTANCE OF THESE TERMS.
1. DISCLAIMER AND LIMITATION OF WARRANTIES. EXCEPT AS PROVIDED IN THIS LICENSE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LEXMARK AND ITS SUPPLIERS PROVIDE THE SOFTWARE PROGRAM "AS IS" AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ABSENCE OF VIRUSES, ALL WITH REGARD TO THE SOFTWARE PROGRAM. This Agreement is to be read in conjunction with certain statutory provisions, as that may be in force from time to time, that imply warranties or conditions or impose obligations on Lexmark that cannot be excluded or modified. If any such provisions apply, then to the extent Lexmark is able, Lexmark hereby limits its liability for breach of those provisions to replacement of the Software Program.
2. LICENSE GRANT. Lexmark grants you the following rights provided you comply with all terms and conditions of this License Agreement:
a. Use. You may not separate the components of the Software Program for use on more than one computer. You agree that you will not Use the Software Program, in whole or in part, in any manner that has the effect of overriding, modifying, eliminating, obscuring, altering or de-emphasizing the visual appearance of any trademark, trade name, trade dress or intellectual property notice that appears on any computer display screens normally generated by, or as a result of, the Software Program.
b. Reservation of Rights. The Software Program, including all fonts, is copyrighted and owned by Lexmark International, Inc. and/or its suppliers. Lexmark reserves all rights not expressly granted to you in this License Agreement.
c. Freeware. Notwithstanding the terms and conditions of this License Agreement, all or any portion of the Software Program that constitutes software provided under public license by third parties ("Freeware") is licensed to you subject to the terms and conditions of the software license agreement accompanying such Freeware, whether in the form of a discrete agreement, shrink-wrap license, or electronic license terms at the time of download. Use of the Freeware by you shall be governed entirely by the terms and conditions of such license.
3. UPGRADES. To Use a Software Program identified as an upgrade, you must first be licensed to the original Software Program identified by Lexmark as eligible for the upgrade. After upgrading, you may no longer use the original Software Program that formed the basis for your upgrade eligibility.
4. LIMITATION ON REVERSE ENGINEERING. You may not alter, reverse engineer, reverse assemble, reverse compile or otherwise translate the Software Program, except as and to the extent expressly permitted to do so by applicable law for the purposes of inter-operability, error correction, and security testing. If you have such statutory rights, you will notify Lexmark in writing of any intended reverse engineering, reverse assembly, or reverse compilation. You may not decrypt the Software Program unless necessary for the legitimate Use of the Software Program.
5. ADDITIONAL SOFTWARE. This License Agreement applies to updates or supplements to the original Software Program provided by Lexmark unless Lexmark provides other terms along with the update or supplement.
6. LIMITATION OF LIABILITY. To the maximum extent permitted by applicable law, for any claim arising out of Lexmark's limited warranty, or for any other claim whatsoever related to the subject matter of this Agreement, Lexmark's liability for all types of damages, regardless of the form of action or basis (including contract, breach, estoppel, negligence, misrepresentation, or tort), shall be limited to the greater of US $5.00 or the money paid to Lexmark or its Authorized remarketers for the license hereunder for the Software Program that caused the damages or that is the subject matter of, or is directly related to, the cause of action.
IN NO EVENT WILL LEXMARK, ITS SUPPLIERS, SUBSIDIARIES, OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUES, LOST SAVINGS, INTERRUPTION OF USE OR ANY LOSS OF, INACCURACY IN, OR DAMAGE TO, DATA OR RECORDS, FOR CLAIMS OF THIRD PARTIES, OR DAMAGE TO REAL OR TANGIBLE PROPERTY, FOR LOSS OF PRIVACY ARISING OUT OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE PROGRAM, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS LICENCE AGREEMENT), REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY OR CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), AND EVEN IF LEXMARK, OR ITS SUPPLIERS, AFFILIATES, OR REMARKETERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY YOU BASED ON A THIRD-PARTY CLAIM, EXCEPT TO THE EXTENT THIS EXCLUSION OF DAMAGES IS DETERMINED LEGALLY INVALID. THE FOREGOING LIMITATIONS APPLY EVEN IF THE ABOVE-STATED REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
7. TERM. This License Agreement is effective unless terminated or rejected. You may reject or terminate this license at any time by destroying all copies of the Software Program, together with all modifications, documentation, and merged portions in any form, or as otherwise described herein. Lexmark may terminate your license upon notice if you fail to comply with any of the terms of this License Agreement. Upon such termination, you agree to destroy all copies of the Software Program together with all modifications, documentation, and merged portions in any form.
8. LIMITATION ON ACTIONS. No action, regardless of form, arising out of this Agreement may be brought by either party more than two years after the cause of action has arisen, except as provided under applicable law.
9. APPLICABLE LAW. This License Agreement shall be governed by the laws of the Commonwealth of Kentucky, United States of America. No choice of law rules in any jurisdiction shall apply. The UN Convention on Contracts for the International Sale of Goods shall not apply. You and Lexmark agree that any claim, dispute, or controversy arising out of or relating to the Software Program, this License Agreement, and/or the breach thereof, no matter by whom or against whom, including but not limited to the validity of the terms of this License Agreement, and of this agreement to arbitrate disputes, as well as claims alleging fraud or misrepresentation, shall be resolved by binding arbitration by and under the Code of Procedure of either the American Arbitration Association or the National Arbitration Forum, as mutually agreed by the parties to such claim, dispute, or controversy. The location of the arbitration shall be held at an office selected by the arbitrator in Lexington, Kentucky or, if mutually agreed by the parties, may be conducted on written submissions or telephonically. This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16.
10. UNITED STATES GOVERNMENT RESTRICTED RIGHTS. The Software Program has been developed entirely at private expense. Rights of the United States Government to use the Software Program is as set forth in this Agreement and as restricted in DFARS 252.227-7014 and in similar FAR provisions (or any equivalent agency regulation or contract clause).
11. CONSENT TO USE OF DATA. You agree that Lexmark, its affiliates, and agents may collect and use information you provide in relation to registration and support services and upgrades performed with respect to the Software Program. Lexmark agrees not to use this information in a form that personally identifies you except to the extent necessary to provide such services.
12. EXPORT RESTRICTIONS. You may not (a) acquire, ship, transfer, or reexport, directly or indirectly, the Software Program or any direct product therefrom, in violation of any applicable export laws or (b) permit the Software Program to be used for any purpose prohibited by such export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
13. AGREEMENT TO CONTRACT ELECTRONICALLY. You and Lexmark agree to form this License Agreement electronically. This means that when you click the "Agree" or "Yes" button on this page, you acknowledge your agreement to these License Agreement terms and conditions and that you are doing so with the intent to "sign" a contract with Lexmark.
14. CAPACITY AND AUTHORITY TO CONTRACT. You represent that you are of the legal age of majority in the place you sign this License Agreement and, if applicable, you are duly authorized by your employer or principal to enter into this contract.
15. ENTIRE AGREEMENT. This License Agreement (including any addendum or amendment to this License Agreement that is included with the Software Program) is the entire agreement between you and Lexmark relating to the Software Program. Except as otherwise provided for herein, these terms and conditions supersede all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Software Program or any other subject matter covered by this License Agreement (except to the extent such extraneous terms do not conflict with the terms of this License Agreement, any other written agreement signed by you and Lexmark relating to your Use of the Software Program). To the extent any Lexmark policies or programs for support services conflict with the terms of this License Agreement, the terms of this License Agreement shall control.
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