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.
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.
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.
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.
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.
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.
(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.
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.
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.
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.
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.
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.
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.
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.
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.