FIRSTPLACE SOFTWARE, INC. END USER LICENSE AGREEMENT
BY CLICKING ON THE "ACCEPT" BUTTON WHEN YOU INSTALL THE SOFTWARE, YOU CONSENT TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK ON THE "DECLINE" BUTTON: THE INSTALLATION PROCESS WILL NOT CONTINUE AND YOU WILL NOT BE ALLOWED TO USE THE SOFTWARE.
Subject to payment of applicable license fees and to the terms and conditions of this Agreement, FirstPlace Software, Inc. ("FirstPlace") grants you a non-exclusive, non-transferable, limited, perpetual (subject to the termination provision below) license to use the WebPosition Gold software and any accompanying documentation or services (collectively, "Software") in the manner described below under "Scope of Grant". For the free trial period, FirstPlace grants you the same license to use the Software, except it lasts only for the free trial period, and is not subject to payment.
I. SCOPE OF GRANT
YOU MAY ONLY:
(a) use the Software on a single computer or on a network (provided that You must ensure that only one individual uses the Software at any time;
(b) make one copy of the Software for archival purposes, provided that any such copy must contain all titles, trademarks, and copyright, proprietary and restricted rights notices on or in the Software and that such copy shall be subject to the terms of this Agreement.
(c) use the Software for the internal purpose of your enterprise, and only for the Software's described purpose as set forth in the Software.
YOU MAY NOT:
(a) permit other individuals to use the Software except under the terms listed above;
(b) permit concurrent use of the Software;
(c) modify, translate, reverse engineer, de-compile, disassemble or otherwise attempt to discern the source code of all or any portion of the Software (except to the extent of applicable laws), or create derivative works based on the Software;
(d) copy the Software other than as specified above;
(e) sell, rent, lease, grant a security interest in, sublicense, distribute or otherwise transfer rights to the Software; or
(f) remove any proprietary notices or labels on the Software or its output.
II. PROPRIETARY RIGHTS
You acknowledge and agree that, other than the license granted to your in this Agreement, the copyright, patent, trade secret, and all other intellectual property and proprietary rights of whatever nature in the Software, are and shall remain the property of FirstPlace.
III. CONFIDENTIAL INFORMATION
You acknowledge that the Software contains valuable confidential information of FirstPlace ("Confidential Information"). You agree to keep as it confidential and to use it only as permitted under this Agreement. You agree to safeguard the Confidential Information using the same degree of care as you use with respect to your own information of like importance, but in any event with no less than reasonable care.
IV. LIMITED WARRANTY AND DISCLAIMER
a. FirstPlace warrants that for 45 days following FirstPlace's delivery of the license key to you for the Software, the Software will perform to your satisfaction. You may notify FirstPlace of any breach of the foregoing warranty during the 45 day warranty period. As Your sole remedy and FirstPlace's sole liability for breach of the foregoing warranty, FirstPlace will terminate this Agreement and refund to you all license fees you have paid for the Software. This warranty shall not apply if the Software is used on or in conjunction with hardware or software other than the unmodified version of hardware and software with which the software was designed to be used as described in the documentation. This warranty does not apply to the free trial of the Software.
b. EXCEPT AS PROVIDED IN SECTION IV(a) ABOVE, THE SOFTWARE AND THE SERVICES (AS DEFINED IN SECTION VI BELOW) ARE PROVIDED TO YOU "AS-IS", WITHOUT WARRANTY OF ANY KIND. FIRSTPLACE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION.
V. INDEMNITY
a. Subject to the terms of this Section V, FirstPlace agrees to indemnify and defend you, at FirstPlace's expense, against any claim or action brought against you, to the extent based upon a claim that the code of the Software infringes any valid U.S. patent issued as of the date the Software is released to you, or infringes on a copyright or trade secret embodied in the code of the software program of a third party, provided that you: (i) promptly notify FirstPlace in writing of any such claim; (ii) give FirstPlace full authority and control of the settlement and defense of the claim; and (iii) fully cooperate with FirstPlace in the defense of such claim, including providing adequate assistance and information. The indemnity provided hereunder shall not apply to amounts paid in settlement of any claim if such settlement is made without FirstPlace's prior written consent. FirstPlace will have no obligation to you for any claim or action arising out of or relating to (1) the use of the Software other than as specified in section V or, (2) in combination with third-party software, hardware or data. THIS SECTION V(a) STATES THE ENTIRE OBLIGATION OF FIRSTPLACE AND THE EXCLUSIVE REMEDIES OF YOU WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR PROPRIETARY RIGHTS VIOLATIONS BY FIRSTPLACE.
b. You agree to indemnify and defend FirstPlace, at your expense, against any claim or action brought against FirstPlace arising out of or related to (1) your use of the Software, except to the extend covered by FirstPlace according to section (a); or (2) your violation of any terms of this Agreement.
VI. SERVICES.
FirstPlace may make available certain FirstPlace owned services ("Services") with respect to the Software. A description of such Services is available at www.webposition.com. Use of the Services are subject to all the terms and conditions of this Agreement.
VII. TERMINATION
This Agreement and the license granted herein shall remain in effect perpetually (except your right to use the free-trial version of the Software, which terminates at the end of the trial period). However, this Agreement and the license will terminate automatically if you fail to comply with the terms and conditions described herein. Upon termination of this Agreement, you shall cease using the Software, promptly return all copies of the Software in your possession or control. In addition, you shall delete all copies of the Software residing in on or off-line computer memory, and destroy all copies of such materials. The following sections will survive any termination or expiration of this Agreement: III, IV, V and IX.
VIII. COMPLIANCE WITH LAWS; EXPORT CONTROLS
None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported in violation of applicable export control laws, rules and regulations of the United States or any other applicable foreign jurisdiction ("Export Control Laws"). By downloading or using the Software, you agree to the foregoing and you represent and warrant that you will comply with all applicable laws, rules and regulations, including without limitation Export Control Laws.
IX. LIMITATION OF LIABILITY
FIRSTPLACE SHALL HAVE NO LIABILITY ARISING UNDER OR RELATED TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE SOFTWARE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF FIRSTPLACE TO YOU FOR ANY REASON, REGARDLESS OF THE CAUSE OF ACTION, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT PAID TO YOU BY FIRSTPLACE FOR THE SOFTWARE UNDER THIS AGREEMENT. THE PRICE OF THE SOFTWARE HEREIN REFLECTS, AND IS SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES SET FORTH IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
X. MODIFICATIONS
Because of the changing and dynamic nature of the Internet, the features of the Software may change from time to time in regard to which search engines, directories, or related features are supported, and to the extent they are supported in the Software. Support for certain search engines or directories may be added or removed depending upon current market conditions, technical considerations, and other circumstances. By accepting this Agreement, you acknowledge that such changes are fair and reasonable.
XI. SUPPORT
Software customers are given free product support. This support will be governed by the current support policies of FirstPlace, which policies are subject to change from time to time. Although it is the intent of FirstPlace to continue service for the software version you are purchasing, if FirstPlace discontinues the software version you are purchasing, FirstPlace reserves the right to limit the product support and updates for the discontinued product to a reasonable time after its discontinuation. By upgrading to a newer version of the Software, you will thereby acquire the support policy that applies to that upgraded version. FirstPlace reserves the right to discontinue free support with 90 days written notice posted to their Web site.
XII. THIRD PARTIES' SITES.
The Software will direct you to external sites on the World Wide Web. FirstPlace is not responsible for any software, data or other information available from any third party web site and you acknowledge that FirstPlace shall have no liability to you for any damage or loss arising from the access to, use of, or reliance on such software, data or information. You shall be solely responsible for complying with any and all terms or conditions imposed by a third party on its web site.
XIII. FEES AND PAYMENT
Except for the free-trial version of the Software, your use of the Software and the Services is subject to your prior payment of all applicable fees (collectively, "Fees"). Fees and payment information are set forth at www.webposition.com and are incorporated herein by this reference. You are responsible for any and all taxes and duties based on the transactions contemplated hereunder. Upon receipt of payment of the Fees, FirstPlace will within a reasonable time, deliver to you via email the license key to allow you to use the Software.
XIV. YOUR INFORMATION
In order to download the Software or use the Services, FirstPlace requires that you provide certain personal information, such as payment information, name and address. You agree to: (a) provide true, accurate, current and complete information about you as prompted by the applicable forms, and (b) maintain and promptly update the information. If you provide any information that is false, inaccurate, not current or incomplete, or FirstPlace has reasonable grounds to suspect that such information is false, inaccurate, not current or incomplete, or if a full refund has been issued to you, FirstPlace reserves the right to refuse to permit you to download the Software or to access or use Services.
XV. MISCELLANEOUS
This Agreement represents the complete agreement between FirstPlace and you concerning the subject matter of this Agreement and supercedes all prior and contemporaneous understandings and agreements between the parties concerning the subject matter of this Agreement. This Agreement may be amended only by a writing executed by both parties. No delay or failure by FirstPlace to act in the event of a breach or default hereunder shall be construed as a waiver of that or any succeeding breach or waiver of the provision itself. You may not assign, transfer, delegate or sublicense its rights, duties or obligations under this Agreement, in whole or in part without FirstPlace's prior written consent. Any attempted assignment in violation of this Section shall be void. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be reformed only to the extent necessary to make it valid or enforceable, and the remainder of this Agreement shall not be affected. This Agreement shall be governed by Missouri law (except for conflict of law provisions). Exclusive jurisdiction and venue or any dispute for any dispute arising out of or related to this Agreement shall be in the federal and state courts serving Jasper County, Missouri. U.S. Government Restricted Rights: Use, duplication of disclosure by the U.S. Government is subject to restrictions set forth in subparagraphs(a) through(d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or subparagraph (c) (1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or at 252.211-7015, and in similar clauses in the NASA FAR Supplement. Contractor/Manufacturer is FirstPlace Software, Inc. 2452 N. MALANG RD, Joplin, Missouri 64801.