END-USER LICENSE AGREEMENT
NOTICE: READ THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING, ACCESSING, COPYING OR USING THE SOFTWARE AND/OR MATERIALS ACCOMPANYING THIS AGREEMENT. CLICKING ON THE “I ACCEPT” BUTTON BELOW, OR IN ANY OTHER WAY INSTALLING, ACCESSING, COPYING OR USING THE SOFTWARE AND/OR MATERIALS, CREATES A LEGALLY ENFORCEABLE CONTRACT AND CONSTITUTES ACCEPTANCE OF ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION.
This End-User License Agreement (the Agreement), effective as of the date you accept the terms hereof (unless returned as specified above, the Effective Date), is entered into between Sheidow Consulting, Inc. an Oregon corporation d/b/a TSS Arena, with an address at 1808 E. 28th Avenue, Eugene, Oregon 97403 USA (Licensor) and Licensee (User). The parties agree as follows:
Confidential Information means, including but not limited to, all materials, documentation, processes, web-based programs, programs, software, systems and information, of any kind, created or provided by Licensor to User for the purpose of this Agreement.
Documentation means any and all materials, including but not limited to, the user guide, help information and/or other documentation provided by Licensor with the Software.
Licensee means the User, together with the business or other entity for which the Software is obtained. Licensee may also include multiple “Users” depending on the applicable size of any entity. Licensee, as defined in this section, refers to any and all Users of Licensee.
Software means any Licensor computer program, web-based application and/or system utilized in the services provided for by Licensor (including in object code) accompanying this Agreement. This also includes the Log-In and Access which is granted to User upon the execution of this Agreement as well as any other accompanying documents or agreements which accompany this Agreement.
Updates means, if applicable, any patch, update or new version of the Software delivered or accessible to Licensee pursuant to the Support Services.
User means you, the individual or entity who accepts this Agreement, not any other person.
2.1 Software. Subject to all terms and conditions in this Agreement, Licensor grants Licensee a nonexclusive, nontransferable, nonsublicenseable right and license to have the User use the Software and Documentation without modification.
2.2 License Control. Licensee acknowledges that the Software may contain code or require devices that detect or prevent unauthorized use of, or disable, the Software.
2.3 Management of Log-In and Personal Profile. It may be possible to provide information to Licensor without providing any personal information to Licensor. However, if you decide to provide personal information, it is your responsibility to maintain and promptly update, including, without limitation, your registration (e-mail, password), your profile information, and any other personally identifiable information you may provide to obtain a product or service available from Licensor (collectively, the “personal information”) in order to keep your personal information current, accurate, and complete. You acknowledge and agree that you are solely responsible for the form, content, and accuracy of any information provided by you to Licensor. You are responsible for maintaining the confidentiality of your ID and password, and are fully responsible for all activities on our sites that occur under your ID and password. You agree to immediately notify Licensor of any unauthorized use of your ID, password, or other Log-In or personal information or any other breach of security. You also agree to log off at the end of each session of use of the system. Licensor cannot and will not be liable for any loss or damage arising from your failure to adhere to these requirements.
- SUPPORT SERVICES
3.1 Support. Licensor will use commercially reasonable efforts to provide Licensee with Software maintenance and application support in accordance with its standard practices (as amended from time to time, Support Services). Licensor shall have no obligation to support any version other than the then current and immediate prior version. Licensee agrees that Licensor may charge in accordance with its then current policies for any support services resulting from (a) problems, errors or inquiries relating to any hardware, system, service or other software or (b) use of any unsupported version of the Software.
3.2 Updates. If applicable, Licensor will provide Licensee with any Update that it makes generally available to its other licensees which have purchased the same level of support. Any Update delivered by Licensor shall be treated as Software for all purposes under this Agreement.
4.1 Confidentiality. Except for the specific rights granted by this Agreement, Licensee shall not possess, use or disclose any Confidential Information without Licensor’s prior written consent, and shall use reasonable care to protect the Confidential Information. Licensee shall be responsible for any breach of confidentiality by its employees, agents, subcontractors or any other individual or entity to whom Licensee divulges this protected information.
- PROPRIETARY RIGHTS
5.1 Restrictions. Licensee shall not (a) use any Confidential Information to create any system, software or documentation that is similar to any Software or Documentation provided to User for the purposes of this Agreement, (b) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying structures, ideas or algorithms of the Software (except
and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, lease, rent, loan, sublicense, transfer or distribute any Software, (d) copy, adapt, merge, create derivative works of, translate, localize, port or otherwise modify any Software or Documentation, (e) use the Software in an automated process, (f) use the Software, or allow the transfer, transmission, export or re-export of all or any part of the Software or any product thereof, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction or (g) permit any third party to engage in any of the foregoing proscribed acts. Licensee shall not use the Software for the benefit of any third party without Licensor’s prior written consent. USER IS ABSOLUTELY PROHIBITED FROM PROVIDING THE LOG-IN AND ACCESS INFORMATION TO ANY NON-USER OR NON-AUTHORIZED PERSON OR ENTITY FOR ANY REASON WHATSOEVER. SHOULD ANY PERSON, GOVERNMENT, GOVERNMENT AGENCY, OR ANY OTHER ENTITY REQUEST OR DEMAND THE ACCESS INFORMATION FROM USER, USER SHALL IMMEDIATELY NOTIFY LICENSOR AND LICENSOR SHALL ADDRESS ANY SUCH REQUEST OR DEMAND.
5.2 No Implied License. Except for the limited rights and license expressly granted hereunder, no other license is granted, no other use is permitted and Licensor (and its suppliers and affiliates) shall retain all right, title and interest in and to the Software and Documentation (and all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights embodied therein).
5.3 Markings. Licensee shall not remove or otherwise alter any trademark, patent notice or other proprietary or legal notice displayed by or contained in any Software, Documentation or packaging.
5.4 Third Party Software. Licensee acknowledges that in operation of the Software, Software or Licensee may operate or interface with software or other technology that is licensed by Licensor, from third parties (Third Party Licensors). Licensee agrees that (a) it will use technology from Third Party Licensors in accordance with this Agreement and any other restrictions specified in the applicable license set forth or referenced in the Documentation, (b) no Third Party Licensor makes any representation or warranty to Licensee concerning the Software and (c) no Third Party Licensor will have any obligation or liability to Licensee as a result of this Agreement or Licensee’s use of the Software or third party software or technology.
- WARRANTY DISCLAIMERS
THE SOFTWARE AND SUPPORT SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE OR SUPPORT SERVICES WILL MEET LICENSEE’S REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS AND THIRD PARTY LICENSORS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE AND SUPPORT SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT,
INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL LICENSOR (OR ITS SUPPLIERS OR THIRD PARTY LICENSORS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SUPPORT SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) AGGREGATE DAMAGES, IN EXCESS OF THE AMOUNT PAID TO LICENSOR FOR THE SOFTWARE OR SUPPORT SERVICE THAT GAVE RISE TO THE CLAIM DURING THE PRIOR 12-MONTH PERIOD, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
- TERM AND TERMINATION
8.1 Term. This Agreement shall commence on the Effective Date and continue in effect until terminated as provided herein.
8.2 Termination. Licensee may terminate this Agreement at any time upon written notice to Licensor. This Agreement shall automatically terminate without further action by any party, immediately upon any material breach by Licensee of any limitation or restriction set forth in Section 2.2 or 5.1 specifically, or any other material term or condition contained herein.
8.3 Effects of Termination. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) all obligations that accrued prior to the effective date of termination and any remedies for breach of this Agreement shall survive any termination, (b) Licensee shall promptly return or destroy all Software and other tangible Documentation and Confidential Information, and permanently erase all Confidential Information from any computer and storage media and (c) the provisions of Sections 4 (Confidentiality), 5 (Proprietary Rights), 6 (Warranty Disclaimers), 7 (Limitation of Liability), 9 (General Provisions) and this Section 8 shall also survive. Any and all data entered into the TSS Arena System by User during the use of this system by User, shall be kept by Licensor for any and all legal purpose.
- GENERAL PROVISIONS
9.1 Entire Agreement. This Agreement, as well as the Services Agreement, constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Terms set forth in Licensee’s Purchase Order (or any similar document) that are in addition to or at variance with the terms of this Agreement are specifically waived by Licensee. All such terms are considered to be proposed material alterations of this Agreement and are hereby rejected. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina, without regard to its conflicts of law provisions.
9.3 Remedies. Unless specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Licensor’s decision to elect not to enforce any right it may have at law or in equity under this Agreement shall not constitute a waiver of that right. Licensee agrees that, in the event of any breach or threatened breach of Section 4 or 5, Licensor will suffer irreparable damage for which there is no adequate remedy at law. Accordingly, Licensor shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
9.4 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested. Notices shall be delivered to the address specified by Licensee when the Software was ordered, or to the address above for Licensor, as the case may be, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
9.5 Assignment. This Agreement and the rights and obligations hereunder are personal to Licensee, and may not be assigned or otherwise transferred, in whole or in part, without Licensor’s prior express written consent. Any attempt to do otherwise shall be void and of no effect. Without Licensee’s consent, Licensor may assign this Agreement to any third party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.
9.6 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
9.7 License to the Government. The Software and related documents are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and
“Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States. If any user of the Software or Documentation is a department, agency or other entity of the United States Government, the use, duplication, reproduction, modification, release, disclosure or transfer of the Software and Documentation is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Software is commercial computer software and the Documentation is commercial computer software documentation, and their use is further restricted in accordance with the terms of this Agreement.
9.8 Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS, LIABILITY LIMITATIONS AND REMEDY LIMITATIONS ARE MATERIAL BARGAINED-FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT BY EACH PARTY AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY HEREUNDER AND IN THE DECISION TO ENTER INTO THIS AGREEMENT.
9.9 Acknowledgment. Licensee acknowledges that (a) it has read and understands this Agreement, (b) it has had an opportunity to have its legal counsel review this Agreement, (c) this Agreement has the same force and effect as a signed agreement, (d) Licensor requires identification of the User and Licensee before issuing this license and (e) issuance of this license does not constitute general publication of the Software or any other Confidential Information.