SOFTWARE LICENSE AGREEMENT
Important - Please Read Carefully Before Accessing or Using This Software. If You Are Unable To Agree With The Terms Of This Agreement, You Should Not Access or Use The Software.
This Software License Agreement (“Agreement”) is a legal agreement between you and [COMPANY NAME] (“Company”) for the [SOFTWARE NAME] software application (the “Licensed Application”). YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY: (A) ACCESSING OR USING THE LICENSED APPLICATION; OR (B) BY CLICKING THE ACCEPTANCE MECHANISM ON THE ELECTRONIC VERSION OF THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT ACCESS OR USE THE LICENSED APPLICATION.
Ownership. The Licensed Application is licensed, not sold, to you for use only under the terms and conditions of this Agreement and Company reserves all rights not expressly granted to you in this Agreement. It is an express condition of this Agreement that the rights, title, ownership, and all intellectual property and proprietary rights in and to the Licensed Application are retained by Company.
Grant of License. Subject to your acceptance of the terms and conditions set forth in this Agreement, Company grants to you a non-exclusive and non-transferable license, with no right to grant sublicenses, to use the Licensed Application. You may not rent or lease the Licensed Application. You agree that, except as expressly permitted by applicable law, neither you nor a third party acting on your behalf will: (i) decompile, disassemble, or reverse engineer the Licensed Application; (ii) modify or create derivative works of the Licensed Application; or (iii) transmit the Licensed Application or provide its functionality, in whole or in part, over the Internet or other network. You may not remove any proprietary notices or labels on or in the Licensed Application.
Consent to Use of Data. You agree that in providing the functionality contained in the Licensed Application, Company will collect and store information that you provide on Company’s servers, which may include, without limitation, site information, reporting information, and related information (“Your Data”). You agree that Company may use Your Data in aggregated and de-identified form to improve and troubleshoot its products and services, and to otherwise access Your Data upon your request. Company agrees that it may not otherwise use your data or disclose or sell Your Data to third parties without your express written consent. You acknowledge, understand, and agree that you must obtain written consent from each third party before you provide such third party’s information to Company as part of Your Data.
Duration and Termination. This Agreement shall remain effective until terminated by you or Company. This Agreement will terminate automatically if you fail to comply with the terms and conditions contained herein. Upon any termination of this Agreement, you agree to discontinue the use of the Licensed Application and remove or destroy all portions of the Licensed Application from your systems.
Confidentiality. You agree the Licensed Application is and contains the confidential information of Company, including trade secrets such as, by way of non-limiting example, content, and internal architecture. You agree to use commercially reasonable efforts to keep such information confidential and not to publish, disclose, display, disseminate, provide, or otherwise make available in any form such confidential information, or any portion thereof, to any third party without the prior written consent of Company.
Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ACCESS TO AND USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION IS PROVIDED “AS-IS” AND WITHOUT ANY EXPRESS, OR IMPLIED WARRANTIES OF ANY KIND. COMPANY AND ITS AGENTS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, WITH RESPECT TO THE LICENSED APPLICATION, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY OF NON-INFRINGEMENT, TITLE, SECURITY, OR QUIET ENJOYMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY.
Limitation of Liability. IN NO EVENT WILL COMPANY, ITS AFFILIATES, OR THEIR AGENTS BE LIABLE FOR PERSONAL INJURY OR ANY INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE LICENSED APPLICATION INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS RELATING TO THE LOSS OF PROFITS, BUSINESS, GOODWILL, DATA, TIME, OR COMPUTER PROGRAMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY’S, ITS AFFILIATES’, AND THEIR AGENTS’ AGGREGATE LIABILITY EXCEED TEN U.S. DOLLARS (U.S.$10.00). THESE LIMITATIONS SHALL APPLY REGARDLESS OF THE FORM OF THE CLAIM (INCLUDING, WITHOUT LIMITATION, ANY CONTRACT, PRODUCT LIABILITY, OR TORT CLAIM). YOU MAY NOT ASSERT ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT AGAINST COMPANY MORE THAN TWELVE (12) MONTHS AFTER SUCH CLAIM INITIALLY ACCRUED.
THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTION 6 ABOVE AND THIS SECTION 7) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
Support and Upgrades. You understand and agree that the Licensed Application is provided “as-is” and Company is under no obligation to provide any maintenance or support for the Licensed Application. Company is under no obligation to provide any new versions, upgrades, bug fixes, enhancements, or modifications (collectively “Updates”) to the Licensed Application; provided, however, in the event Company in its sole discretion elects to provide you with any Updates, the terms of this Agreement shall apply to the Updates, unless the Update is accompanied by a new license, in which case the new license will supersede this Agreement. Unless explicitly set forth in writing by Company, any Updates provided by Company shall not reset, extend, or provide any new warranties or warranty period relating to the Licensed Application.
Indemnity. You will indemnify, defend, and hold Company, its affiliates, and their members, managers, employees, and agents harmless from and against any and all damage, loss, expense, liability, threats, claims, suits, actions, judgments, decrees, and costs (including reasonable attorneys’ fees and disbursements) arising out of or relating to your breach of this Agreement or any other act or omission by you.
Export Restrictions. You agree to comply with all applicable international and national laws that apply to the Licensed Application, including the United States Export Administration Regulations and the International Traffic in Arms Regulations (ITAR), if applicable, as well as end-user, end-use, and destination restrictions issued by the United States and other governments.
Applicable Law and Venue. This Agreement is governed by the laws of the State of New York, excluding its conflicts of law rules. You and Company agree to submit to the personal and exclusive jurisdiction of the courts located in Albany County, New York. Except as provided under the Equitable Remedies provisions below, You agree to use commercially reasonable to resolve any dispute between us promptly and amicably and without resort to any legal process, including but not limited to, discussions and attempts in good faith to settle the dispute without prejudice to either party’s right to terminate this Agreement. Any dispute, claim or controversy arising out of or in connection with this Agreement which has not been settled through negotiation shall be resolved by the American Arbitration Association in accordance with its commercial arbitration rules and any such arbitration shall be conducted in Albany, New York, United States in the English language. An arbitration award may be enforced in any court of competent jurisdiction. Each party shall bear its own costs and expenses of the arbitration (including attorney’s fees and costs) and one-half (1/2) of the fees and costs of the arbitrators.
Equitable Remedies. Unless otherwise specified in this Agreement, all rights, remedies and powers of a party are cumulative, and not alternative or exclusive, and shall be in addition to all other rights, remedies and powers given hereby or any laws now existing or hereafter enacted. Each party acknowledges and agrees that if it breaches any obligations with regard to the unauthorized use or infringement of confidential information or intellectual property rights of the other party hereunder, the other party may suffer immediate and irreparable harm for which monetary damages alone shall not be a sufficient remedy, and that in addition to all other remedies that the non-breaching party may have, the non-breaching party shall be entitled to seek injunctive or equitable relief in a court of competent jurisdiction, to remedy a breach or threatened breach of such obligations by the breaching party and to enforce this Agreement, and the breaching party hereby waives any and all defenses and objections it may have on grounds of jurisdiction and venue, including, but not limited to, lack of personal jurisdiction and improper venue, and waives any requirement for the securing or posting of any bond in connection with such remedy.
Modifications. No change or modification of this Agreement will be valid unless it is made by Company in writing.
Severability. The provisions of this Agreement are severable. If any provision is held to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision.
Survival. In the event of any termination or expiration of this Agreement for any reason, all provisions of this Agreement whose meaning requires them to survive shall survive the expiration or termination of this Agreement.
Complete Agreement. This Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether written or oral.