End User Software Agreement
PLEASE READ BEFORE INSTALLATION OR USE OF THE INTERNET SIMPLICITY, INC. (“LICENSOR”) SOFTWARE YOU HAVE LICENSED OR TO WHICH YOU ARE OTHERWISE PROVIDED ACCESS (INCLUDING, WITHOUT LIMITATION, ANY ACCESS ON A MANAGED SERVICE BASIS) (“SOFTWARE”). BY CLICKING ON THE "ACCEPT" BUTTON, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT ("LICENSEE") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT ("AGREEMENT"). LICENSEE’S USE OF THE SOFTWARE SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST (I) CLICK THE "CANCEL" BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE AND (II) REFRAIN FROM USING OR ATTEMPTING TO USE THE SOFTWARE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. SOFTWARE LICENSE GRANT. Subject to the terms of this Agreement, Licensor hereby grants Licensee a limited, personal, non-sublicensable, non-transferable, nonexclusive license to use the Software only for Licensee’s internal use and only in accordance with any documentation that accompanies it (or is otherwise provided by Licensor). In addition, to the extent Licensee is or has been provided with any Software source code (“Source Code”), such Source Code is Licensor’s confidential information and will not be disclosed by Licensee to any third party without Licensor’s prior written authorization (which may be conditioned upon such third party executing Licensor-provided use and disclosure restrictions). Licensor shall own all right, title and interest (including all intellectual property rights of any sort throughout the world) in and to all improvements and modification to, and derivatives of, the Software that are, or at any time have been, made by or on behalf of Licensee (collectively, “Derivatives”). Licensee shall and hereby does make all assignments necessary to accomplish the foregoing ownership. Licensee shall assist Licensor to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights assigned. Any Derivatives shall be deemed part of the Software and subject to this Agreement.
2. LICENSE RESTRICTIONS. Except as expressly and unambiguously permitted by this Agreement, Licensee shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, or distribute the Software; (ii) to the extent the Software is provided by Licensor in object code form only, reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software (except where the foregoing is expressly prohibited by applicable local law, and then only to the extent so prohibited); (iii) rent, lease, or use the Software for timesharing or service bureau purposes, or otherwise use the Software on behalf of any third party; or, (iv) use the Software for performing comparisons or other "benchmarking" activities, either alone or in connection with any software (and Licensee will not publish or disclose any such performance information or comparisons). Licensee shall maintain and not remove or obscure any proprietary notices on the Software. As between the parties, title, ownership rights, and intellectual property rights in and to the Software, and any copies, Derivatives or portions thereof, shall remain in Licensor and its suppliers or licensors. Licensee understands that Licensor may modify or discontinue offering the Software at any time. The Software is protected by the copyright laws and treaties. This Agreement does not give Licensee any rights not expressly granted herein. Licensor shall have the right to (i) audit Licensee’s facilities and records to confirm Licensee’s use of the Software is in accordance with the terms and conditions of this Agreement and (ii) report the results of any such audit to Licensor’s suppliers.
3. SUPPORT AND UPGRADES. This Agreement does not entitle Licensee to any support, upgrades, patches, enhancements, or fixes for the Software (collectively, "Support") unless Licensee makes separate arrangements for Support with Licensor and pays any fees associated with such Support as set designated by Licensor. Any such Support for the Software that may be made available by Licensor shall become part of the Software and subject to this Agreement.
4. FEES. Licensee shall pay Licensor (or its applicable authorized reseller) the fees for the Software designated by Licensor (or its applicable authorized reseller). All fees shall be non-refundable and payable in US dollars on the date they come due. Licensee shall also pay all sales, use, value-added and other taxes, tariffs and duties of any type assessed against Licensor except for taxes on Licensor’s income.
5. INDEMNITY. Licensee agrees that Licensor shall have no liability whatsoever for any use Licensee makes of the Software. Licensee shall indemnify and hold harmless Licensor from any claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from Licensee’s use of the Software as well as from Licensee’s failure to comply with any term of this Agreement.
6. LIMITED WARRANTY. Licensor warrants to Licensee only that, at the time the Software is delivered to Licensee, it will be free of material defects in materials and workmanship. Licensee’s exclusive remedy, and Licensor’s sole liability, will be for Licensor to (at its option) to repair or replace of defective Software; provided that, Licensee notifies Licensor in writing of such defect within ten (10) days from delivery. Licensor may, at its option, require return of the Software as a condition to the remedy under this Section.
7. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, LICENSOR AND ITS SUPPLIERS PROVIDE THE SOFTWARE "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO LICENSEE.
8. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM LICENSEE’S USE OF THE SOFTWARE. LICENSOR’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY LICENSEE HEREUNDER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO LICENSEE.
9. TERM AND TERMINATION. This Agreement shall continue until terminated as set forth in this Section. Licensee may terminate this Agreement at any time. Licensor may terminate this Agreement immediately if Licensee violates any provision of this Agreement. In addition, if Licensee is using the Software under an evaluation agreement with Licensor, this Agreement shall terminate upon expiration of the applicable evaluation period, unless Licensee elects to retain such Software (subject to payment to Licensor of all applicable fees). Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Software, and shall so certify to Licensor that such actions have occurred. Licensor shall have the right to inspect and audit Licensee’s facilities to confirm the foregoing. Sections 2 and 4 through 11, and all accrued rights to payment, shall survive termination of this Agreement.
10. GOVERNMENT USE. If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software and Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this Agreement.
11. EXPORT CONTROLS. Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By installing or using the Software, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
12. MISCELLANEOUS. This Agreement represents the complete agreement concerning the Software between the parties, to the exclusion of any pre-printed or contrary terms of any Licensee purchase order (or similar document), and supersedes and cancels all prior agreements, understandings and representations between the parties related to the subject matter hereof. For clarity, if this Agreement is entered by Licensee in connection with the upgrade by Licensee to any new version of software previously provided by Licensor, then such previously provided software shall also be deemed “Software” and, therefore, subject to the terms and conditions of this Agreement. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Licensor to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Licensor’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without Licensor’s consent and any action or conduct in violation of the foregoing shall be void and without effect. Licensor expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California, without regard to the Uniform Computer Information Transactions Act. Without limiting Company’s right to seek injunctive or other equitable relief in court, either party may elect (by written notice given prior filing a complaint or, in the case of the defendant, prior to answering a complaint) to resolve a dispute by binding arbitration in the English language in Santa Clara, California under the Rules and Procedures of the Judicial Arbitration and Mediation Service, Inc.; the decision of the arbitrator will be enforceable in any court. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
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