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Licensing AgreementEXIT STAGE RIGHT®END USER LICENSE AGREEMENT
THE FOLLOWING IS A LICENSE AGREEMENT (“Agreement”) RELATING TO THE EXIT STAGE RIGHT® EXIT STRATEGIES: A PLAN AND A PLACE FOR YOUR ESTATE INFORMATION SOFTWARE (“Software”). CAREFULLY READ ALL OF THE AGREEMENT’S TERMS AND CONDITIONS BEFORE INSTALLING THE SOFTWARE. IF YOU DO NOT ACCEPT SUCH TERMS AND CONDITIONS, AND INDICATE YOUR ACCEPTANCE, YOU WILL NOT BE PERMITTED TO INSTALL THE SOFTWARE, AND YOU MUST PROMPTLY RETURN THE SOFTWARE TO EXIT STAGE RIGHT FOR A REFUND. BY CLICKING “I ACCEPT” AND/OR USING THE SOFTWARE, YOU ARE DEEMED TO HAVE AGREED TO THIS AGREEMENT. YOU ACKNOWLEDGE THAT THIS AGREEMENT IS AS ENFORCEABLE TO THE SAME EXTENT AS ANY WRITTEN AGREEMENT ON PAPER SIGNED BY YOU.
1. Definitions. “Software” shall mean the EXIT STRATEGIES: A PLAN AND A PLACE FOR YOUR ESTATE INFORMATION software solely in machine-readable object code, together with any upgrades, error corrections, modifications, or enhancements developed by Exit Stage Right and made generally available to other end users. “Documentation” shall mean explanatory written material accompanying the Software. The expressions “Use,” “Used,” or “Using” shall mean to access, install, display, run, download, or otherwise utilize the functionality of the Software or Documentation. “You” and “Your” are expressions that shall mean or refer to the person installing and/or otherwise Using the Software or Documentation. “Licensed Materials” shall mean the Software and the Documentation.
2. License. Exit Stage Right grants You the following non-exclusive, non-transferable license during the term of this Agreement: (a) to Use for Your own personal, non-commercial purposes one installed copy of the Software and the Documentation on a single workstation, (b) to make one backup copy of the Software strictly for Your personal use. You may install the Software on a second workstation only if You first delete all portions of the Software from the first workstation. You may transfer the Software to another person only if You provide all partial or whole copies of the Software to such person and delete all partial or whole copies of the Software in Your possession.
3. Restrictions on License and Confidentiality. You shall not Use or copy the Licensed Materials for purposes other than those permitted in Section 2. You shall not sell, rent, lease, sublicense, or, except as permitted in Section 2, transfer the Software or Documentation. You shall not decompile, disassemble, reverse engineer, modify, or create a derivative work of the Software. You have no right to inspect, possess, Use, copy, or attempt to discover the source code (or any portion thereof) used to create the Software (“Source Code”), except to the extent that you are expressly permitted to decompile the Software under applicable law and you notify Exit Stage Right of Your intention to decompile the Software and your reason to do so. You acknowledge that the Source Code is valuable and proprietary confidential information of Exit Stage Right. If You do come into possession of the Source Code, for any reason, You shall (i) promptly notify Exit Stage Right, (ii) not disclose, directly or indirectly, to any third party any portion of the Source Code; (iii) not use or exploit the Source Code in any way; (iv) promptly return all whole or partial copies of the Source Code; (v) take all reasonably necessary precautions to protect the confidentiality of the Source Code. The provisions of the foregoing sentence are subject to and may be limited by your rights under applicable law. You acknowledge that your breach of the confidentiality terms of this Section will cause irreparable harm to Exit Stage Right that is inadequately compensable in damages and acknowledge that Exit Stage Right is entitled to injunctive relief for such breach.
4. Support. Exit Stage Right shall provide reasonable support for the Software via email, but has no obligation to provide any other kind of support for the Software to You or any other party.
5. Intellectual Property Rights. The Licensed Materials are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Licensed Materials are licensed to You, and not sold to You. Subject to the rights granted in Section 2, Exit Stage Right owns all right, title, and interest in and to the Licensed Materials and any and all patent, trademark, and copyright rights in the Licensed Materials shall remain the sole and exclusive property of Exit Stage Right. All rights not expressly granted under Section 2 are reserved by Exit Stage Right. You shall preserve and not remove any proprietary marks, legends, and copyright notices that appear in the Licensed Materials, or any portion thereof. This Agreement does not grant You any rights in connection with any trademarks or service marks of Exit Stage Right.
6. Limited Warranty and Exclusive Remedy. a. Exit Stage Right warrants that the Software will operate substantially in accordance with the Documentation for a period of 45 days from the date on which You purchased a license to the Software. b. Exit Stage Right’s and its licensors’ entire liability and Your exclusive remedy for Software that does not operate in accordance with the Documentation is, at Exit Stage Right’s sole option, either (i) replacement of the Software upon its return to Exit Stage Right, or (ii) return of the Software to Exit Stage Right and a refund of the license fee paid to Exit Stage Right.
7. DISCLAIMER OF WARRANTY. EXCEPT AS WARRANTED IN SECTION 6, THE LICENSED MATERIALS ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTY OF ANY KIND, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXIT STAGE RIGHT AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. YOU ARE RESPONSIBLE FOR DETERMINING THAT THE LICENSED MATERIALS MEET YOUR REQUIREMENTS, AND HAVE THE QUALITY THAT YOU NEED, AND EXIT STAGE RIGHT DISCLAIMS ANY SUCH RESPONSIBILITY. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION.
8. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL EXIT STAGE RIGHT OR ITS LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF EXIT STAGE RIGHT OR ONE OF ITS LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL EXIT STAGE RIGHT’S LIABILITY FOR ANY AND ALL CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF OR RELATING TO, IN WHOLE OR IN PART, THIS AGREEMENT, THE SOFTWARE, OR THE DOCUMENTATION, WHETHER UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE, OR OTHERWISE, EXCEED THE LICENSE FEES PAID BY YOU TO EXIT STAGE RIGHT. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF DAMAGES SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
9. Term and Termination. This Agreement shall remain in effect until terminated. You may terminate this Agreement at any time by providing notice to Exit Stage Right. Exit Stage Right shall be entitled to terminate this Agreement immediately if You materially breach any term of this Agreement. Upon termination of this Agreement, You shall, within ten (10) days of termination either return all full or partial copies of the Software to Exit Stage Right or destroy all such full or partial copies and certify such destruction by notice to Exit Stage Right. Sections 3, 5, 6(b), 7, 8, 9, 10, 11, and 12 shall survive termination of this Agreement for any reason.
10. Notices. All notices and communications required or permitted under this Agreement shall be in writing and sent to the following address:
Notices shall be deemed to be given (a) on the third business day after mailing if mailed by certified or registered mail, postage prepaid and properly addressed, or (b) on the date of delivery shown by a delivery confirmation if sent by a nationally-known courier service.
11. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules including the Emergency Interim Relief Procedures, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be San Jose, California U.S.A. The language of the arbitration shall be English. Nothing in this Agreement shall be construed to preclude Exit Stage Right from seeking injunctive relief, damages, or other relief based on a breach of Section 3 or an infringement of Exit Stage Right’s intellectual property rights in and to the Licensed Materials. The parties irrevocably consent to the jurisdiction of the federal and state courts located in Santa Clara County, California for the purpose of resolving any action at law or in equity brought by Exit Stage Right arising out of or relating to such intellectual property rights or a breach of Section 3.
12. Miscellaneous. This Agreement shall be governed by the internal laws of the State of California, USA without giving effect to its conflicts of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This Agreement constitutes the entire agreement and understanding between the parties and supersedes all prior agreements, whether oral or written, between the parties with respect to the subject matter of this Agreement. No amendment, modification, or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by an authorized representative of each party. The unenforceability of any provision or provisions of this Agreement shall not render unenforceable or impair its remainder. If any provision of this Agreement is deemed invalid or unenforceable in whole or in part, this Agreement shall be deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the parties. The headings in this Agreement are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of this Agreement. |
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