LICENSE AGREEMENT
PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT ("AGREEMENT") BEFORE PROCEEDING WITH OPERATION OF THE WHITESMOKE ENRICHMENT™ SOFTWARE ("SOFTWARE") WHICH IS LICENSED HEREUNDER (NOT SOLD). BY CLICKING THE "YES" BUTTON BELOW AND BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN CLICK THE "NO" BUTTON BELOW TO TERMINATE SOFTWARE OPERATION. THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AN INDIVIDUAL OR A SINGLE ENTITY ("YOU" OR "LICENSEE") AND WHITESMOKE, INC. ("LICENSOR") REGARDING THE SOFTWARE.
1. LICENSE GRANT
1.1 Licensor hereby grants to you, and you accept, a nonexclusive license to use the Software only as authorized in this Agreement. The Software may be used only on the original workstation in which it was installed. Neither concurrent use on two or more computers nor use in a local area network or other network is permitted without a separate authorization of Licensor.
1.2 The Software is licensed as a single product. Other than the rights expressly set forth in section 1 above, no other right or interest whatsoever in or relating to the Software is transferred or granted to you.
1.3 Without limiting the foregoing, You may not (i) reverse engineer, decompile, or disassemble the Software or any part of it, (ii) modify, divide, part or revise the Software, or any part thereof, or otherwise use parts, portions or elements of the Software, standing alone, and (iii) assign, sublicense, resell, transfer, pledge, loan, lease, rent, or share your rights under this Agreement to any third party. This Agreement shall automatically terminate upon occurrence of any of the events set forth in (i), (ii) and (iii) above.
2. LICENSOR'S RIGHTS
2.1 You acknowledge and agree that the Software is a proprietary product of the Licensor, protected under copyright laws and any international copyright treaties, patent law, trade-secrets law and other intellectual property rights of general applicability.
2.2 You further acknowledge and agree that between you and Licensor, all right, title, and interest in and regarding the Software, including associated intellectual property rights, are and shall remain with Licensor.
2.3 This Agreement does not convey to you an interest in or regarding the Software, but only a limited right of use revocable in accordance with the terms of this Agreement.
3. TERM
3.1 This Agreement is effective upon your consummation of the transaction for the purchase of the license for the Software, following your payment of the applicable license fees.
3.2 Licensor may terminate this Agreement upon the breach by you of any term hereof.
4. LIMITED WARRANTY / UPGRADE POLICY
4.1 Licensor agrees that, for one year from the date of your initial purchase of the license for the Software, the Software shall operate substantially in accordance with the functional specifications as published at Licensor's website. If, during the warranty period, a defect appears with respect to Software functionality, then you will be eligible to receive a free upgrade. You agree that the foregoing constitutes your sole and exclusive remedy for breach by Licensor under any warranties made under this Agreement. This warranty does not cover any Software that has been altered or changed in any way by anyone other than Licensor.
4.2 Licensor is not responsible for problems associated with or caused by incompatible operating systems or equipment, or for problems in the interaction of the Software with software not furnished by Licensor.
4.3 No oral or written information or advice given by Licensor or its dealers, distributors, employees or agents shall in any way extend, modify or add to the foregoing warranty.
4.4 THE EXPRESS WARRANTY SET FORTH ABOVE, CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE SOFTWARE. LICENSOR EXPRESSLY DISCLAIMS ANY OTHER WARRANTY WITH RESPECT TO THE SOFTWARE, SERVICE OR ANY INFORMATION DELIVERED OR SENT BY LICENSOR RELATING TO THE SOFTWARE OR THE SERVICE RELATING TO IT. THE SOFTWARE AND SERVICES ARE PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH LICENSEE.
4.5 THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE IS BORNE BY THE LICENSEE. THE SOFTWARE IS NOT FAULT TOLERANT AND SHOULD NOT BE USED IN ANY ENVIRONMENT WHICH REQUIRES THIS. LICENSEE HEREBY EXPRESSLY AGREES NOT TO USE OR RELY ON THE SOFTWARE FOR ANY APPLICATIONS THAT MAY RESULT IN ANY DAMAGE IF FAILED.
4.6 THE SECURITY MECHANISMS IMPLEMENTED BY THE SOFTWARE HAVE INHERENT LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE SOFTWARE SUFFICIENTLY MEETS ITS REQUIREMENTS.
4.7 LICENSOR DOES NOT WARRANT OR GUARANTEE THAT THE FUNCTIONS OR SERVICES PERFORMED BY THE SOFTWARE OR BY THE SERVICE PROVIDED BY THE LICENSOR WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT ANY INFORMATION OR DATA RECEIVED ON OR THROUGH THE SOFTWARE OR RELATING TO IT WILL BE FREE OF ANY VIRUSES, WORMS, OR ANY OTHER DESTRUCTIVE PROPERTIES, AND WILL NOT CONTAIN ANY OBJECTIONABLE MATERIALS.
4.8 THE DOCUMENTS AND GRAPHICS IN THE SOFTWARE COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. LICENSOR MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE DOCUMENTS AND RELATED GRAPHICS FOR ANY PURPOSE. ALL SUCH DOCUMENTS AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.
5. LIABILITY
5.1 LICENSOR SHALL NOT BE LIABLE UNDER ANY CLAIM RELATED TO THE SOFTWARE, INCLUDING CLAIMS IN RESPECT OF INFRINGEMENTS OF RIGHTS, INFRINGEMENT OF PATENT, COPYRIGHT, REGISTERED DESIGN OR TRADEMARK AND OTHER INTELLECTUAL PROPERTY RIGHTS.
5.2 IN NO EVENT SHALL LICENSOR BE LIABLE FOR THE USE OF THE SOFTWARE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY LOSS OR DAMAGE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS AND BUSINESS INTERRUPTION), OR FOR LOST DATA, DAMAGE TO OTHER SOFTWARE, COMPUTER FAILURE, OR MALFUNCTION, OR DOWNTIME, REGARDLESS OF WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR NOT, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE AND/OR THE PROVIDED USER INPUT ANALYZIS.
5.3 THE CUMULATIVE LIABILITY OF LICENSOR TO YOU FOR ALL CLAIMS RELATING TO THE SOFTWARE OR TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, WILL BE LIMITED TO, AND IN NO EVENT SHALL EXCEED, THE AMOUNT ORIGINALLY PAID BY YOU TO LICENSOR FOR THE LICENSE OF THE SOFTWARE.
6. COMPLIANCE WITH LAWS
6.1 Licensee shall be solely responsible to comply, at its own expense, with local, state, national and international laws and regulations, including without limitation laws regarding data protection, security and privacy and with all governmental approvals, licenses, permits and authorizations which may be required with regards to the Licensee's use of the Software.
6.2 Notwithstanding and without limiting any of the aforementioned, in no case shall the Licensor be held liable for any liability arising out of Licensee's failure to comply with any such laws, regulations, approvals, licenses or authorizations.
7. ENHANCEMENTS
From time to time Licensor may, in its sole discretion, advise Licensee of updates, upgrades, enhancements or improvements to the Software and/or new releases of the Software (collectively, "Enhancements"), and may allow Licensee to use such Enhancements upon and subject to payment of prices as may be established by Licensor from time to time. All such Enhancements to the Software provided to the End-User Licensee shall also be governed by the terms of this License.
8. INTELLECTUAL PROPERTY
This Agreement does not grant any right, title or interest in connection with any trademarks, service marks or other intellectual property owned by the Licensor or any third party, and you agree that no such right, title or interest shall be asserted by you with respect to such trademarks, service marks or other intellectual property.
9. GOVERNING LAW
This Agreement shall be construed and governed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of laws thereof, and the eligible courts of the State of New York shall have exclusive jurisdiction over all disputes between the parties.
10. SEVERABILITY
Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
11. NO WAIVER
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
12. RESERVATION OF RIGHTS
All rights not expressly granted herein are reserved by Licensor.
13. ASSIGNMENT
Any attempt by Licensee to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void ab initio.
LICENSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. LICENSEE FURTHER AGREES THAT THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN LICENSEE AND LICENSOR AND SUPERCEDES ANY PROPOSALS OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
Licensee acknowledges that Licensor's Software integrates third parties software, to which the Licensor has been granted a license with the right to sub license to further sub-licensee. Therefore, all Licensees' obligations under this Agreement shall be deemed to have been given by the Licensee both to the Licensor and to such third parties.
