Software License Agreement
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("AGREEMENT") CAREFULLY. TO COMPLETE YOUR ORDER FOR THE SOFTWARE OR DOWNLOAD TRIAL VERSION OF THE SOFTWARE OR INSTALL THE SOFTWARE ON ANY COMPUTER, YOU MUST ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CHECKING THE BOX MARKED "I AGREE TO THE TERMS OF THE LICENSE AGREEMENT" OR "I AGREE" (BOX). THIS AGREEMENT GOVERNS YOUR USE AND ALL END-USERS WITHIN YOUR ORGANIZATION'S USE OF THE STIMULUS TECHNOLOGY SOFTWARE. YOU MAY FIND A VERSION OF THIS AGREEMENT POSTED AT THE URL HTTP://WWW.STIMULUSTECHNOLOGY.COM/LICENCEAGREEMENT.ASPX. BY CHECKING THE BOX YOU ARE CERTIFYING THAT YOU HAVE THE PROPER AUTHORITY TO BIND ALL USERS OF THE SOFTWARE WITHIN YOUR ORGANIZATION.
This Agreement is between You (entity or person, hereinafter referred to as "You" or "your") and Stimulus Technology ("Vendor"), with a mailing address at P.O. Box 360, Marlboro, NJ 07746.
LICENSE GRANT & RESTRICTIONS
License Grant. The Licensed Product is licensed only and is not sold to You. "Licensed Product" means the Web Stimulus server software as developed by Vendor, user documentation, training materials, Updates, Upgrades and New Releases. Vendor hereby grants, and You accept, a non-exclusive, non-assignable, non-transferable, non-sublicensable, limited license to use the Licensed Products in machine readable form only by installing and executing it on a licensed number of computers, and to utilize the Licensed Product, by You, in accordance with the user documentation for the term indicated when You downloaded the Licensed Products from Vendor's web-page and/or licensed the Licensed Products from Vendor (hereinafter referred to as the "Term"). The licensed number of computers means one or such greater numbed that is agreed upon by You and Vendor in a written arrangement between You and Vendor if such arrangement exist. The license grant is conditioned upon Your timely payment of the applicable fees. You may make one (1) copy of the Licensed Product solely for backup purposes. You may use the Licensed Product subject to the terms and conditions contained herein, and any use shall always remain subject to this Agreement.
License Restriction. You shall display and retain Vendor's copyright, trademark, and other notices on any portion of the Licensed Products, however such Licensed Products are used.
Licensed Product Restriction. You shall (i) not attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Licensed Product or any portion thereof, or otherwise derive its source code; (ii) not modify, port, translate, localize or create derivative works of the Licensed Product; (iii) not use the Licensed Product in a way that (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (c) is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; or (d) to propagate any virus, worms, Trojan horses or other programming routine intended to damage any system or data; (iv) not use the Licensed Product in any application that may involve risks of death, personal injury, severe property damage or environmental damage, or in any life support applications, devices or systems; (v) not use a total number of licenses in excess of the total amount allocated to You and (vi) make more than one (1) copy of the software in machine-readable, object code form, which may only be used for non-productive backup purposes. The license granted hereunder is specific to You only, and is not transferable to any other person or business entity, including subsidiaries and successors-in-interest to You, without the prior written consent of Vendor. You shall not violate any such restrictions.
TERMINATION
Termination for Breach. Vendor may, by 30-day written notice to You which may include electronic mail (email), terminate this Agreement, including all licenses granted hereunder, if You fail to pay Vendor in full for any fee(s) and/or charge(s) due to Vendor if payment is not rendered within thirty (30) days after receiving such notice.
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
You acknowledge and agree that the Licensed Product is a proprietary product of Vendor protected under United States copyright laws, patent laws, other applicable intellectual property laws, and international treaty provisions. The Licensed Product, its copyright, trademark, and any other intellectual property rights in the Licensed Product are owned by Vendor. Vendor retains all rights not expressly granted to you. You acquire no ownership of the Licensed Product from this Agreement and no license to use the Licensed Product beyond the term of this Agreement. You acquire no license to copy (except as expressly permitted by this Agreement), prepare derivative works, or participate in development, manufacturing, and marketing of the Licensed Product. Intellectual property includes, but is not limited to, patents, inventions, invention disclosures, software programs, copyrights, trademarks and all other similar items of intellectual property, developed by Vendor, whether registered or unregistered.
LIMITED WARRANTY & DISCLAIMER
Licensed Product Limited Warranty. Vendor warrants that the Licensed Product will conform substantially in accordance with its documentation for sixty (60) days from delivery (Warranty Period). If Vendor confirms a defect reported by You in the unaltered Licensed Product, Vendor will use commercially reasonable efforts to remedy the nonconformance. Vendor does not warrant that the operation or utilization of any Licensed Product will be uninterrupted or error free, nor does it guarantee that its remedial efforts will correct any nonconformance. Corrections will be warranted for the remainder of the original Warranty Period. If any Licensed Products fails to comply with any warranty set forth in this Section and Vendor does not remedy such failure as required by this Section, Vendor's obligation and liability, and Your exclusive remedy, for such failure shall be limited to the refund of a maximum amount equal to the license paid within the Warranty Period or ten-thousand ($ 10,000.00) US dollars whichever is less, excluding amount for past use, for such Licensed Products, upon the return of such Licensed Products to Vendor, in which event this Agreement shall terminate with respect to such Licensed Products. Amount for past use are equal to the license fee prorated for the period prior to reporting the defect by You. If You received refund for the Licensed Product under the Money Back Guarantee conditions that Vendor can offer from time to time then after receiving such refund this Agreement shall terminate with respect to such Licensed Products and Vendor will have no further obligations in respect with this Limited Warranty. You expressly recognize and acknowledge that such limitation of liability is an essential part of this Agreement and is an essential factor in establishing the price of the Licensed Products. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY.
DATA CONTENT DISCLAIMER. YOU EXPRESSLY RECOGNIZE THAT VENDOR DOES NOT CREATE, OPERATE, CONTROL OR ENDORSE ANY DATA, INFORMATION, THIRD-PARTY PRODUCTS, PROCESSED BY THE LICENSED PRODUCTS OR SERVICES PROVIDED VIA ANY LICENSED PRODUCTS HEREUNDER, INCLUDING BUT NOT LIMITED TO, INFORMATION OBTAINED. VENDOR DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTY, REPRESENTATION OR ENDORSEMENT TO YOU OR ANY THIRD PARTY WHATSOEVER WITH REGARD TO ANY DATA, INFORMATION, PRODUCTS OR SERVICES PROVIDED IN CONJUNCTION WITH THE LICENSED PRODUCTS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; AND 3) NON-INFRINGEMENT. VENDOR SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST OR DAMAGE ARISING, EITHER DIRECTLY OR INDIRECTLY, FROM ANY LOSS OF DATA.
GENERAL DISCLAIMER. VENDOR MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, WRITTEN OR ORAL, EXCEPT AS EXPRESSLY STATED HEREIN. ADDITIONALLY, VENDOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED AND IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FREEDOM FROM INFRINGEMENT WITH RESPECT TO ALL LICENSED PRODUCTS, UPDATES, UPGRADES, NEW RELEASES AND ALL OTHER PRODUCTS, SERVICES, MATERIALS AND OTHER ITEMS FURNISHED UNDER, OR IN CONNECTION WITH, THIS AGREEMENT.
GENERAL LIMITATION OF LIABILITY
Vendor's entire liability, and Your exclusive remedy, for any and all claims arising under or in connection with this Agreement or related to any item or service provided under or in connection with this Agreement, regardless of the form of the action (including negligence), whether in breach of warranty, contract, tort, strict liability or otherwise, shall be limited to a maximum amount of one thousand ($ 1,000.00) US dollars. You expressly recognize and acknowledge that such limitation of liability is an essential part of this Agreement and is an essential factor in establishing the price of the Licensed Products. You shall cause your insurers of data, if any, to waive any right of subrogation against Vendor.
EXCLUSION OF DAMAGES. IN NO EVENT SHALL VENDOR BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, BUSINESS INTERRUPTION, LOST REVENUE, OR LOST BUSINESS, IN CONNECTION WITH THE USE OF ANY LICENSED PRODUCT OR ANY OTHER ITEM OR SERVICE PROVIDED UNDER THIS AGREEMENT, NOR FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, NOR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY PRODUCT, SERVICE OR OTHER ITEM PROVIDED UNDER THIS AGREEMENT, WHETHER IN BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE (INCLUDING NEGLIGENCE), EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
GENERAL
Export. You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations.
Assignment. Neither this Agreement nor any of Your rights or obligations under this Agreement shall be assigned or transferred by You without the prior written consent of Vendor and any attempted assignment or transfer without such consent shall be voidable by Vendor upon notification.
No Agency. No agency, partnership, joint venture, or other joint relationship is created by this Agreement.
Notices. Any notices or other communication will be addressed to any email address that You may provide and will be deemed communicated when so emailed.
Limitations Period. Neither party may bring any action under this Agreement for any cause whatsoever more than two (2) years after the occurrence giving rise to such cause of action; provided, however, that this Section shall not apply to any action brought by Vendor to protect its intellectual property rights or confidential information.
Severability. If any provision of this Agreement is determined by a court to be, or becomes, invalid, unenforceable or illegal, such provision shall be (a) modified to be made valid, enforceable and legal in such a manner as to best effectuate the intent of the parties on the date hereof or (b) deemed eliminated where such modification is not practicable; the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such modification or deletion.
Governing Law. This Agreement will be governed by the laws of the State of New York, USA, without regard to conflicts of law rules. You agree to comply with US export control laws, as applicable. You consent to the exclusive jurisdiction and venue of the state and federal courts located in New York, NY with regard to any dispute relating to this Agreement or its subject matter.
Modifications & Enforceability. No modification of this Agreement shall be binding upon either party unless made in writing and signed by an authorized representative of Vendor and You. If any provision of this Agreement is held unenforceable for any reason whatsoever, the unenforceable provision will be construed in accordance with applicable law as nearly as possible to reflect the original intent, and all other provisions will remain in full force and effect.
Survival. The following Sections shall survive the expiration or termination of this Agreement: "Ownership and Intellectual Property Rights"; "Limited Warranty & Disclaimer"; "General Limitation of Liability"; and "General."