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IMPORTANT-READ CAREFULLY BEFORE USING: This is an agreement between you (either an individual or a single entity) and TLC Software, LLC, (“Licensor”). Please read this Agreement carefully before installing or otherwise using Licensor’s MeasureUp® TM software (“Software”). By installing or otherwise using the Software, you are accepting the terms of this Agreement. If you are not willing to be bound by the terms of this Agreement, you should click on the button marked “I DO NOT ACCEPT” and you may not install, access or otherwise use the Software. Your clicking on the button marked “I ACCEPT” and your continued use of the Software indicates your acknowledgement that you have read, understand and accept these terms and conditions. This Agreement represents the entire agreement concerning the Software between you and Licensor, and it supersedes any prior proposal, representation or understanding between the parties.

The Software, and any accompanying materials thereto (collectively, the “Product”) is protected by trade secret laws, copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Product is licensed, not sold. You agree to keep the Product confidential and hold it and the related methods and techniques in confidence and trust for Licensor.

  1. Limited Nonexclusive License. Licensor grants to you, and you accept, a nonexclusive, nontransferable license to use the Product for your personal use, in accordance with the terms of this Agreement. You are not granted any rights under any of Licensor’s trademarks, or any trademarks of any other third party or any other products or services of Licensor (including without limitation the Program). Licensor is not responsible for providing any product support, maintenance or upgrades, unless contracted for in a separate agreement between you and Licensor. You are responsible for the installation, management and operation of the Software, unless you contract with Licensor for separate or additional support. You may use the Software on more than one central processing unit to which you have access, provided that such use is for your sole use. The Product may not be shared or used concurrently by different users without a separate license for each user. In the event that you provide a different user with any access to the Product, such user must register with Licensor as a user under a separate license agreement.

  2. License Restrictions and Confidentiality Obligations. You agree that you will not (a) reverse engineer, modify, alter, disassemble, decompile, adapt or translate any part of the Software except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (b) copy (except solely for back-up purposes), sell, loan, assign, sublicense, subcontract, transfer, give, disclose, pledge, lease, rent or share any portion of the Product or your rights or obligations under this Agreement; (c) modify or prepare derivative works of the Product; or (d) use the Product in a competing business. You agree to keep confidential the Product and use your best efforts to prevent and protect the Product from unauthorized disclosure or use.

  3. Licensor’s Rights. You acknowledge and agree that the Product is proprietary to Licensor and protected under United States laws and international treaties. You further acknowledge and agree that all right, title and interest in and to the Product, including all associated intellectual property rights in the Product, are and shall remain with Licensor. This Agreement does not convey to you an interest in or to the Product, but only a limited right to use, revocable in accordance with the terms of this Agreement.

  4. Your Warranty and Indemnification. You represent and warrant to Licensor that your use of the Product will at all times comply with this Agreement, and all applicable law, rules and regulations. You hereby agree to indemnify and hold harmless Licensor and its employees, licensors, independent contractors, providers, subsidiaries and affiliates (collectively, the “Affiliates”) from and against any and all liability and costs incurred by the Affiliates in connection with any claim arising out of any breach by you of any of the representations, warranties and covenants of this Agreement, including, without limitation, attorneys’ fees and costs. You shall cooperate fully in the defense of any claim. Licensor reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of Licensor.

  5. Term. This Agreement is effective when you click the “I ACCEPT” button or use the Product, whichever is earlier. You or Licensor may terminate this Agreement at any time by providing the other party written notice. Upon such termination, you agree to return to Licensor the Product and all copies and portions thereof.

  6. Licensor Disclaimer of Warranty. THE PRODUCT (INCLUDING ALL SERVICES, DATABASES, CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION ACCESSED BY ANY MEANS THEREOF) IS PROVIDED “AS-IS”, WITHOUT WARRANTIES OF ANY KIND AND LICENSOR DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF ORIGINALITY, MERCHANTABILITY, NONINFRINGEMENT, TITLE, ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SERVICES OR FUNCTIONS CONTAINED IN THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, THAT ALL DEFICIENCIES, ERRORS, DEFECTS OR NONCONFORMITIES WILL BE CORRECTED, THAT THE PRODUCT WILL MEET YOUR SPECIFIC REQUIREMENTS OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL WORK CORRECTLY IN A MULTI-USER OR NETWORK ENVIRONMENT. LICENSOR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE.

YOU SHALL USE THE SOFTWARE AT YOUR OWN RISK. You assume the entire risk as to the results and performance of the Software. You are advised that information, data and files supplied to you and stored by you in connection with the use of the Software are transported through a network and stored on a server. Thus, it is your responsibility to create back-up files for any and all such information, data and files that you use in connection with the Software.

You acknowledge and agree that:

(a) the Product and its use may result in unexpected results, loss of data, project delays or other unpredictable damage or loss to you; and

(b) Licensor has the right to unilaterally abandon development of the Product at any time and without any obligation or liability to you or any third party. You further agree that you shall make no claim against Licensor for lost data, run time, inaccurate output, work delays or lost profits resulting from the use or operation of the Product.

  1. Limitation of Liability. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOST PROFITS, LOST REVENUE, LOST DATA OR BUSINESS INTERRUPTION AND THE LIKE, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.

  2. Export Restrictions. The Software may contain technical data subject to export and re-export restrictions imposed by the government of the U.S.A. You shall not use the Software in any manner that results in violation of the export control laws and regulations of the U.S.A. You shall not, and shall not cause, any export or re-export, directly or indirectly, the Software or the accompanying materials to (i) any countries that are subject to U.S.A. export restrictions, (ii) any user of this Software who you know or have reason to know will utilize the Software and/or accompanying materials in the design, development or production of weapons, including nuclear, chemical or biological weapons, or (iii) any other user of this Software who has been prohibited from participating in U.S.A. export transactions by any federal agency of the government of the U.S.A.

  3. Data. Information available to you through the use of the Product is derived from a wide variety of sources. Licensor makes no warranty or representation whatsoever with respect to information available through the Product. You acknowledge that some information available may be inaccurate, incomplete, untimely, offensive or inappropriate; and you agree to assume all risks associated with such.

  4. Internet. Licensor does not necessarily endorse any product or service offered or advertised over the Internet, and you shall assume full risk and be fully responsible for any relationship created between you and an advertiser as a result of your use of the Product in conjunction with the Internet. You also acknowledge that some information available from the Internet may be protected by copyright or other intellectual property laws; and you agree to assume all risks associated with the violation of those laws and infringement of rights resulting from those laws.

  5. Injunctive Relief. You acknowledge that any breach of your obligations under this Agreement with respect to the proprietary rights or confidential information of Licensor or any of its licensors will cause Licensor irreparable injury for which the remedies at law are inadequate and therefore Licensor is entitled to immediate equitable relief in addition to all other remedies provided by this Agreement or available at law or in equity.

  6. Electronic. You and Licensor desire to facilitate certain transactions pursuant to this Agreement by exchanging documents, records and signatures electronically or by utilizing electronic agents. The use of electronic facilities or agents shall be in accordance with procedures established by Licensor and governed by the applicable provisions of the Uniform Electronic Transactions Act as adopted in the State of Connecticut.

  7. Arbitration. Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with Licensor or any of Licensor’s affiliates shall be submitted to confidential arbitration in New Haven, Connecticut, except that, to the extent you have in any manner violated or threatened to violate Licensor’s intellectual property rights, Licensor may seek injunctive or other appropriate relief in any state or federal court in the state of Connecticut (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.

  8. Miscellaneous. This Agreement shall be construed and governed in accordance with the laws of the State of Connecticut without reference to its conflict of law rules. 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, and such void or unenforceable term shall be construed, limited, modified or, if necessary, served to the extent necessary to eliminate its invalidity or unenforceability. No modification or waiver of this Agreement or any provisions shall be binding unless made in writing and signed by the parties hereto. 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. This Agreement sets forth the entire agreement between the parties. Should you have any questions concerning this Agreement, or if you desire to contact Licensor for any reason, please contact: TLC Software, 101 Hempstead Place, Suite 200, Joliet, IL 60433, email: info@measure-up.net.

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By clicking the button "I ACCEPT", you agree to the terms above.