Confidential and Proprietary
Licensed software
Terms and conditions
By making any purchase on this website, you agree to these Terms of Service.
By making any purchase, you signify your Assent and Agreement to these Terms of Service. If you do not agree to these Terms of Service, do not make any purchase.
1. Introduction.
ProductNameKeywords.com owns or is otherwise authorized to distribute the licensed software (as defined below). Unless otherwise provided in the relevant schedule (as defined below) to this agreement, the licensed software is licensed to licensee for use by licensee on a company-wide basis. This agreement will be effective as of the date of purchase of the ProductNameKeywords software program that forms a part of this agreement (the "ProductNameKeywords software purchase"), and each schedule to this agreement will be effective as of the date set forth on the ProductNameKeywords order form that forms a part of such schedule.
2. Definitions.
2.1 " Authorized user" shall mean a licensee or an employee of the licensee who, to the extent required by ProductNameKeywords for specific licensed software, has (I) submitted to ProductNameKeywords a completed written or electronic copy of ProductNameKeywords's user registration form relating to such licensed software, and (ii) been issued an individual user login and/or an individual password for the licensed software by ProductNameKeywords. Licensee acknowledges and agrees that actions of authorized users shall be deemed to be actions of licensee.
2.2 " Documentation" shall mean the standard end-user manual(s) and quick reference materials that ProductNameKeywords makes generally available for the licensed software, in either hard-copy or electronic form.
2.3 " ProductNameKeywords support" shall mean the online software support ProductNameKeywords makes available to licensee to facilitate the reporting and resolution of incidents.
2.4 " Incident" shall mean (I) any irregularity, error, problem or defect resulting from an incorrect functioning of any version of the licensed software if such irregularity, error, problem or defect renders the licensed software incapable of meeting the material specifications contained in its documentation or causes incorrect functions to occur, or (ii) an incorrect or incomplete identification, statement or diagram in the documentation that causes the documentation to be inaccurate or incomplete in any material respect.
2.5" Licensed materials" shall mean the licensed software and the documentation.
2.6 " Licensed software" shall mean the computer software described in the first paragraph of part I of each schedule to this agreement. The term "licensed software" shall also include any modifications, updates, enhancements and releases to such software which are provided to licensee by or on behalf of ProductNameKeywords, from time to time, pursuant to such schedule(s). Depending upon the licensed software in question, all or a portion of the licensed software may reside on, and be provided to licensee through, a ProductNameKeywords or third-party computer and not be delivered to licensee.
2.7 " Licensee" shall mean the party identified as such on the ProductNameKeywords software subscription form.
2.8 " Losses" shall mean any liabilities, claims, actions, suits, proceedings, judgments, losses, damages, costs and expenses. However, the term "losses" shall not include legal and other expenses incurred in defending an indemnifiable claim under this agreement for which the financial responsibilities of the parties are specified in section 14.
2.9 "Marks" shall mean a party's registered or unregistered trade names, trademarks, logos and service marks. Without limiting the generality of the foregoing, licensee acknowledges that ProductNameKeywords's marks include "ProductNameKeywords®".
2.10 " Proprietary information" of a party shall mean (I) information disclosed by such party relating to product development strategy and activity, marketing strategy, corporate assessments and strategic plans, pricing, financial and statistical information, accounting information, identity of suppliers, software, systems, processes, formulae, inventions, discoveries, policies, guidelines, procedures, practices, disputes or litigation, (ii) other confidential, proprietary or trade secret information disclosed by such party that is identified in writing as such at the time of its disclosure, (iii) all other confidential, proprietary or trade secret information disclosed by such party, which a reasonable person would recognize as such, (iv) information relating to such party's employees, contractors or customers which, if released, would cause an unlawful or actionable invasion of privacy, and (v) any compilation or summary of information or data that is itself proprietary information. Without limiting the generality of the foregoing, licensee acknowledges and agrees that the licensed materials are the proprietary information of ProductNameKeywords and/or its third-party licensors. For purposes of this agreement, information shall be deemed to be disclosed by a party if such information is disclosed by any of its officers, employees, directors, contractors, agents or representatives.
2.11 " Schedule" shall mean any schedule entered into from time to time pursuant to this agreement, which schedule (with the exception of schedule a) refers to this agreement.
2.12 " Seller/servicer" shall mean an entity that is a party to a "selling and servicing contract" with ProductNameKeywords.
2.13 " Subscription fees" shall mean all fees set forth in section 8.1 of this agreement and of the schedules(s) hereto.
2.14 " Third-party licensor" shall mean any third party that licenses or otherwise conveys the right to use and/or distribute any component of the licensed materials, owned or otherwise made available by such third party to ProductNameKeywords, including, but not limited to, any third party that licenses to ProductNameKeywords the right to provide remote access to its software, data, services or other materials.
3. Grant of rights and imposition of obligations.
3.1 License. Subject to the terms and conditions of this agreement and compliance therewith by licensee, during the term of this agreement, ProductNameKeywords grants licensee a non-exclusive, non-transferable license (I) to permit its authorized users to use the licensed software solely in executable form, (ii) to install (if applicable) one copy of any licensed software delivered to licensee by or on behalf of ProductNameKeywords for each authorized user of such licensed software, and (iii) to use the associated documentation.
3.2 Right to copy software. Licensee may not copy the licensed software except (I) as necessary to exercise its right to install any licensed software delivered pursuant to section 3.1(ii), and (ii) for making one (1) copy of any licensed software installed pursuant to section 3.1(ii) for backup and archival purposes. Licensee shall reproduce and include ProductNameKeywords's and any third-party licensor's trademark, trade name, copyright and other proprietary rights notices, legends, symbols or labels appearing on or in the licensed software on all copies of the licensed software, and all copies shall be subject to all terms, conditions and obligations set forth in or arising under this agreement.
3.3 Right to copy documentation. Licensee may copy the documentation (other than the documentation of third-party licensors) to the extent necessary to exercise the foregoing licenses. Licensee shall reproduce and include ProductNameKeywords's trademark, trade name, copyright and other proprietary rights notices, legends, symbols or labels appearing on or in the documentation on all copies of the documentation and all copies shall be subject to all terms, conditions and obligations set forth in or arising under this agreement.
3.4 Restrictions on use; audit rights. The foregoing rights to install, use and copy various components of the licensed materials shall be subject to the following restrictions:
(A) licensee shall not copy or allow copies of the licensed materials to be made, except as specifically authorized under this agreement;
(B) licensee shall only use the licensed materials for its own internal business purposes. Without derogating the generality of the foregoing, (I) licensee shall not use or allow others to use the licensed materials in a multiple-use arrangement or as a part of a service bureau, and (ii) licensee shall only use the licensed materials in support of its web site creation activities;
(C) licensee shall not resell, sublicense, distribute or otherwise transfer for any purpose any component of the licensed materials to any person, firm or entity;
(D) licensee shall not rent, lease, grant a security interest in, or otherwise transfer ownership rights to, the licensed materials;
(E) licensee shall not attempt to disassemble, decompile, reverse engineer, derive or otherwise reproduce any part of the source code form of the licensed software, except to the extent that such activity is expressly permitted by applicable law;
(F) licensee shall not modify, alter, translate or create derivative works based upon the licensed materials;
(G) licensee shall only use the licensed materials for their intended use, as described in the documentation; and
(H) licensee shall comply with the terms and conditions of any "shrink-wrap," "click-wrap" or similar notice or message contained in the licensed software, once licensee has accepted the terms and conditions of such notice or message by using the related functionality or service or taking such other action that such notice or message states will constitute acceptance thereof.
ProductNameKeywords shall have the right, upon reasonable notice to licensee, to enter licensee's premises to audit licensee's use of the licensed materials and licensee agrees to allow ProductNameKeywords or its representatives access to such facilities, books and records as are reasonably required to audit licensee's compliance with this agreement.
3.6 Unauthorized representations. Without the express prior written consent of ProductNameKeywords, licensee agrees not to (I) make any representations, statements or suggestions to a third party that purport to be or might reasonably be construed to be made on behalf of ProductNameKeywords or its third-party licensors, or (ii) make any representations regarding the capabilities of the licensed software other than those made by ProductNameKeywords or its third-party licensors in the most recent version of the documentation.
4. Ownership of licensed materials.
4.1 Ownership. Licensee agrees that title and all ownership rights to the licensed materials and all copies thereof made by licensee hereunder, and any and all copyrights, trademarks, trade names, trade secret or patent rights, if any, therein shall reside in ProductNameKeywords or its third-party licensors, as the case may be. Licensee further acknowledges that (I) the licensed materials are protected by copyright and other intellectual property laws and by international treaties, and (ii) licensee has no rights in the licensed materials, except those expressly granted by this agreement.
4.2 Protection. Licensee will take all reasonable measures requested by ProductNameKeywords, and/or as otherwise provided in this agreement, to protect the licensed materials from any use, reproduction, publication, disclosure or distribution, except as specifically authorized by this agreement.
5. Delivery.
ProductNameKeywords shall provide licensee with the following materials in connection with this agreement:
(A) licensed software. For each licensee who plans to use or access specific licensed software, ProductNameKeywords shall deliver accessto ProductNameKeywords software via the ProductNameKeywords web site. Such licensed software shall be delivered (or made available) following identification of each such site by licensee in writing or by electronic mail.
(B) documentation. Following the licensing of specific licensed software pursuant to the relevant schedule(s), ProductNameKeywords shall deliver one copy of any related documentation (or make such documentation available electronically).
6. Rights and responsibilities of licensee.
6.1 Hardware; software; alternative systems. Licensee shall be exclusively responsible for (I) providing all hardware and software (other than any licensed software) necessary for installing, operating and using any licensed software that is to be used at licensee's premises
6.2 Incident reporting. Licensee agrees to provide ProductNameKeywords with data, documentation or other such evidence of incident(s) that it experiences during the term of this agreement within one business day of becoming aware of such incident(s).
6.3 Rights in improvements. Notwithstanding any provision to the contrary in this agreement, ProductNameKeywords shall be the sole and exclusive owner of, and licensee hereby assigns and agrees to assign to ProductNameKeywords all rights in (I) any changes, modifications, upgrades or enhancements, in design, functionality or otherwise, to the licensed materials, the ProductNameKeywords network, ProductNameKeywords's internet sites and/or any successor products, systems, networks or sites, and (ii) any of licensee's proposed or suggested changes, modifications, upgrades or enhancements, in design, functionality or otherwise, to the licensed materials, the ProductNameKeywords network, ProductNameKeywords's internet sites and/or any successor products, systems, networks or sites, without any recourse or obligation to licensee. Licensee acknowledges and agrees that ProductNameKeywords shall be under no obligation to consider or implement any such changes, modifications, upgrades or enhancements recommended or requested by licensee.
6.4 Rights in data. ProductNameKeywords may use, reproduce and retain (I) all data generated utilizing the licensed software that pertains to the functionality or performance of the licensed software or resides on the ProductNameKeywords network or computer systems operated for the benefit of ProductNameKeywords, (ii) all data necessary or useful in assisting ProductNameKeywords in the diagnosis or correction of incidents, the measurement of software or service usage, the protection or security of the licensed software or the ProductNameKeywords network (or password protected areas of ProductNameKeywords's internet sites), the performance of system or network maintenance, the preparation of billing statements or the evaluation of its software or services, or any improvements, upgrades or enhancements thereto, (iii) all data necessary or useful in performing its obligations under this agreement, providing reports to licensee or responding to licensee requests, and (iv) all data that licensee is required to report or make available to ProductNameKeywords pursuant to any of ProductNameKeywords's other agreement(s) between licensee and ProductNameKeywords.
6.5 Software interfaces. ProductNameKeywords may, from time to time, provide certain consulting and other services to licensee, which may include, but not be limited to, software installation and integration services. ProductNameKeywords and its third-party licensors make no representations or warranties regarding (I) the availability of any interface between the licensed software and third-party software and/or systems, (ii) the availability of access to or by any specific provider of third-party software and/or systems, or (iii) the timing of such interface availability. Further, licensee acknowledges and agrees that (I) ProductNameKeywords and its third-party licensors will in no way be responsible for any losses that may result from licensee's use of any software and/or systems obtained from any third-party provider, despite the fact that such software and/or systems may interface with the licensed software or that ProductNameKeywords may have provided installation or integration services with respect to the same, and (ii) licensee shall maintain a direct, independent contractual relationship with any such third-party provider.
6.6 User identification numbers, passwords and digital certificates. Licensee's access to the licensed software may be dependent upon a security access system that may require licensee and/or each authorized user to specify a user login and password as part of the sign-on procedure. Such security access system may rely, among other things, on the issuance by ProductNameKeywords (and/or a designated third party) of a digital certificate to an authorized user, which certificate may incorporate in whole or in part an authorized user's user login and/or password. Licensee represents and warrants that each authorized user registered with ProductNameKeywords pursuant to such a system is (I) an employee of licensee, (ii) authorized to receive digital certificates, and (iii) the individual identified as such on the user registration form submitted to ProductNameKeywords. Licensee agrees to ensure that any individual password is known only to the appropriate authorized user. In addition, licensee agrees to immediately notify ProductNameKeywords (a) if at any time an authorized user who has been issued an individual user identification number, password and/or digital certificate (or has been registered to receive any of the foregoing) ceases to be an authorized user for any reason, including as a result of such user no longer being employed by licensee, or (b) in the event of any loss, theft or unauthorized disclosure or use of any user identification number, password or digital certificate. Individual user identification numbers, passwords and digital certificates may not be transferred between authorized users, and licensee shall ensure that such transfers do not occur. ProductNameKeywords may provide functionality within the licensed software such that licensee is able to electronically compare its list of authorized users with such a list maintained by ProductNameKeywords. To the extent such functionality is provided, licensee shall conduct periodic comparisons of the separately maintained lists, and licensee shall immediately notify ProductNameKeywords of any discrepancy revealed by any such comparison. ProductNameKeywords reserves the right at any time and from time to time to change and/or revoke user identification numbers, passwords and digital certificates issued to licensee and/or any authorized user.
6.7 Security and data retention procedures. Where licensee data or other materials reside on a ProductNameKeywords system, ProductNameKeywords will use reasonable care to avoid loss, alteration or improper access to licensee's data and other materials. ProductNameKeywords may copy, display, store and internally distribute such data and other materials for the purposes of the operation of the licensed software. Licensee shall be responsible for implementing appropriate procedures to protect its data and other materials and shall be responsible for security breaches caused by its employees, agents or contractors, including, without limitation, any access or entry into any ProductNameKeywords or third party system not covered by this agreement. Such procedures may include, but are not limited to, encrypting material prior to its transmission, utilizing commercially available virus checking programs designed to prevent the transmission and receipt of viruses and other destructive code, implementing appropriate disaster recovery and back-up procedures, and implementing appropriate procedures to prevent disclosure of data and other materials to a party other than the intended recipient. Licensee shall use reasonable care to prevent third parties from gaining access to the ProductNameKeywords network or password protected portions of ProductNameKeywords's internet sites through licensee's systems. Licensee is solely responsible for the back-up and restoration of its data and other materials. Licensee shall comply with all reasonable security policies and procedures established by ProductNameKeywords and communicated to licensee with respect to the licensed software and/or the ProductNameKeywords network or internet sites. ProductNameKeywords shall have the right to remove any material, the content of which ProductNameKeywords deems to be in violation of law or any term or condition of this agreement (including any schedule). Notwithstanding the foregoing, ProductNameKeywords shall have no obligation to remove, screen, police, edit or monitor any data or other material generated by licensee or its employees, agents, contractors, representatives or affiliates.
6.8 Data reporting. If the licensed software is designed to facilitate the reporting or other provision of data to ProductNameKeywords, licensee shall be responsible for (I) the accuracy and completeness of data input, and (ii) assuring that the proper licensee personnel review and approve any notification, information or request submitted to ProductNameKeywords via the licensed software prior to its transmission. ProductNameKeywords is hereby authorized to conclusively rely on the accuracy and genuineness of any information conveyed to ProductNameKeywords using such licensed software, and shall be under no obligation to authenticate the source of, or verify the accuracy of, any such information.
6.9 Indemnification. Notwithstanding the provisions of section 12.1 hereof, licensee shall indemnify and hold harmless ProductNameKeywords, its third-party licensors and each of the foregoing entities' affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors and assigns, as such, from and against any losses which arise out of or result from any third-party claim relating to (I) licensee's use of the licensed materials in conjunction with any third-party system as referenced in section 6.5 of this agreement, (ii) any act or omission of licensee in connection with this agreement or the licensed software (except to the extent that ProductNameKeywords or its third-party licensors caused such losses), (iii) any software, information or data provided by or on behalf of licensee, (iv) any breach of section 3.4, 3.6, 6.6, 6.7 or 6.8 of this agreement, and/or (v) any defamatory or illegal, or allegedly defamatory or illegal, material transmitted by licensee (or any person or entity that gains access to the licensed software through licensee or pursuant to this agreement).
7. Support.
7.1 ProductNameKeywords support. During the hours posted on the applicable ProductNameKeywords network or the applicable ProductNameKeywords internet site or otherwise provided to licensee from time to time, ProductNameKeywords personnel will be available to licensee via the ProductNameKeywords support site to respond to technical questions regarding the functionality of the licensed software, and to help licensee identify, verify and resolve incidents occurring on, or with respect to, the licensed materials. In addition, ProductNameKeywords shall provide the installation services (if any) specified in the schedule(s) hereto. Such services shall constitute the sole and exclusive support services to be provided by ProductNameKeywords to licensee under this agreement. Unless otherwise agreed by ProductNameKeywords in writing, licensee shall only use the most recent version of the licensed materials provided (or otherwise made available) by ProductNameKeywords, and will follow ProductNameKeywords's instructions concerning the return or destruction of any prior versions of the licensed materials. Licensee agrees to provide ProductNameKeywords with remote access to the licensed software and related software to the extent necessary to enable ProductNameKeywords to (I) determine the version of the licensed materials being utilized by licensee, and (ii) download to licensee the current version of the licensed materials. This section shall not be interpreted to require ProductNameKeywords to (I) develop and release any upgrades or enhancements to the licensed materials, or (ii) provide licensee with any upgrade or enhancement that ProductNameKeywords decides, in its sole discretion, to make available as a separately priced item or only on a limited basis.
7.2 Licensee contacts. With respect to each schedule entered into pursuant to this agreement, licensee shall assign one technical contact who shall have primary responsibility for all communications with ProductNameKeywords's technical support representatives with respect to the subject matter of such schedule. Such contacts shall have sufficient technical expertise, training and experience for licensee to perform its obligations hereunder.
8. Fees, taxes and billing.
8.1 Subscription fees. Licensee agrees to pay the connection charges and other charges (if any) for the licensed materials ordered or used by licensee, as set forth on the ProductNameKeywords licensed software rate sheet (or product-specific rate sheet) made available to licensee or posted on the applicable ProductNameKeywords network or applicable internet site. ProductNameKeywords may increase or decrease such charges from time to time and licensee agrees to pay any such adjusted charges; provided that notice of such adjustment shall be provided by posting on the applicable ProductNameKeywords network or applicable internet site, or otherwise provided to licensee, (I) on or before its effective date with respect to fees which constitute pass-through charges from third-party licensors or other vendors, and (ii) at least twenty (20) days' before its effective date with respect to all other charges. In addition, licensee agrees to pay ProductNameKeywords any applicable charges set forth in part ii to the schedule(s) to this agreement.
8.2 Taxes. In addition to the subscription fees, licensee shall pay or reimburse ProductNameKeywords on demand for all current and future federal, state and local taxes imposed on the possession or use of the licensed software, any services provided hereunder and any fees payable hereunder, excluding, however, any taxes assessed on ProductNameKeywords's net income.
8.3 Billing. Except as expressly provided in the relevant schedule(s), licensee will be billed monthly in arrears for subscription fees at the address set forth in the ProductNameKeywords software subscription form (or the relevant ProductNameKeywords customer change request form). Payment is due upon receipt of invoice. Accounts not paid within thirty (30) days of the date of the invoice shall be deemed delinquent and are subject to late charges at a variable annual rate that is three (3) percentage points above the prime rate published in the wall street journal, or at the maximum rate permitted by law, whichever is less, commencing on the date of the invoice, plus all costs of collection, including, without limitation, reasonable attorneys' fees. ProductNameKeywords reserves the right to suspend licensee's access to the ProductNameKeywords network, ProductNameKeywords's password protected internet sites or any licensed software if licensee's account is delinquent.
9. Confidentiality.
9.1 Protection. All proprietary information disclosed by one party to the other in the course of performing under this agreement or to which the other gains access in connection with this agreement shall be deemed to be the property of the disclosing party, or the appropriate third-party licensor (or other third-party owner), as the case may be. The receiving party agrees to (I) receive such proprietary information in confidence, (ii) use reasonable efforts to maintain the confidentiality of such proprietary information and not disclose such proprietary information to third parties (except for the receiving party's representatives, agents and contractors who have a need to know, are under a duty of non-disclosure with respect to such information, and are acting for the sole benefit of the receiving party), which efforts shall accord such proprietary information at least the same level of protection against unauthorized use and disclosure that the receiving party customarily accords to its own information of a similar nature, (iii) use or permit the use of such proprietary information solely in accordance with the terms of this agreement, and (iv) promptly notify the disclosing party in writing of any actual or suspected loss or unauthorized use, disclosure or access of the disclosing party's proprietary information of which it becomes aware. The terms and conditions of this agreement (as well as all information regarding the negotiation of this agreement) shall be deemed to be the proprietary information of both parties. If licensee is a government agency, licensee agrees that it shall comply fully with the trade secrets act (18 u.s.c. §1905) Or other applicable law with regard to the proprietary information. Each party agrees that it shall abide by and reproduce and include any restrictive legend or proprietary rights notice that appears in or on any proprietary information of the other party or any third-party licensor (or other third-party owner) that it is authorized to reproduce. Each party also agrees that it shall not remove, alter, cover or distort any trademark, trade name, copyright or other proprietary rights notices, legends, symbols or labels appearing on or in any proprietary information of the other party or any third-party licensor (or other third-party owner).
9.2 Exclusions. The restrictions on use and disclosure set forth above shall not apply when, and to the extent that the proprietary information: (I) is or becomes generally available to the public through no fault of the receiving party (or anyone acting on its behalf); (ii) was previously rightfully known to the receiving party free of any obligation to keep it confidential; (iii) is subsequently disclosed to the receiving party by a third party who may rightfully transfer and disclose such information without restriction and free of any obligation to keep it confidential; (iv) is independently developed by the receiving party or a third party without reference to the disclosing party's proprietary information, or (v) is required to be disclosed by the receiving party as a matter of law, provided that the receiving party uses all reasonable efforts to provide the disclosing party with at least ten (10) days' prior notice of such disclosure and the receiving party discloses only that portion of the proprietary information that is legally required to be furnished pursuant to the opinion of legal counsel of the receiving party. Notwithstanding the foregoing, neither party shall disclose, or permit the disclosure of, the terms or conditions of this agreement without the prior written consent of the other party, except (a) as provided in section 9.2(v) above, (b) to the extent necessary to permit the exercise of its rights or the performance of its obligations under this agreement, or (c) to seek advice from its attorneys, accountants or other professional advisors.
10. Publicity; marks.
10.1 Approval procedure. Each party will submit to the other party for its prior approval, which approval may be withheld at such party's sole discretion, that portion of any press release, internet posting, marketing, advertising, promotional or similar materials referencing the other party and/or its marks in connection with this agreement (the "materials"). Once approved, such materials may be reused until such approval is withdrawn pursuant to section 10.2. Notwithstanding the foregoing, the parties agree that statements of fact made in routine correspondence with specific customers shall not constitute "materials."
10.2 Withdrawal of approval. The rights granted in section 10.1 may be withdrawn at any time by the granting party upon reasonable prior written notice. In the event of such withdrawal, existing inventories of tangible materials may be depleted.
10.3 Exclusion. Notwithstanding the foregoing provisions of this section 10 and subject to the provisions of section 9, either party may provide disclosures as required by law or as reasonably advised by legal counsel without the consent of the other party, and in such event prompt notice thereof shall be provided to the other party.
10.4 Ownership of marks. Each party acknowledges and agrees that (I) the other party's marks are and shall remain the sole property of the other party, (ii) nothing in this agreement shall confer in a party any right of ownership or license rights in the other party's marks, and (iii) neither party shall register the other party's marks in any jurisdiction. In addition, licensee acknowledges and agrees that (I) the marks of third-party licensors are and shall remain the sole property of such third-party licensors, (ii) nothing in this agreement shall confer in licensee any right of ownership or license rights in the marks of third-party licensors, and (iii) licensee shall not register the marks of third-party licensors. Without limiting the generality of the foregoing, licensee agrees not to use or adopt any trade name, trademark, logo or service mark which is so similar to ProductNameKeywords's marks or the marks of third-party licensors as to be likely to cause deception or confusion, or which is graphically or phonetically similar to any of ProductNameKeywords's marks or the marks of third-party licensors.
10.5 Legend requirement. Unless otherwise agreed in writing, when using the other party's marks pursuant to this agreement, a party shall take all reasonable measures required to protect the other party's rights in such marks, including, but not limited to, the inclusion of a prominent legend identifying such marks as the property of the other party. In addition, licensee shall include a legend to the effect that its use of ProductNameKeywords's name or marks is for illustration purposes only and does not represent an endorsement of licensee's products or services by ProductNameKeywords.
11. Warranty.
11.1 Warranty.
(A) ProductNameKeywords warrants to licensee that the media containing the licensed software delivered to licensee (if used) will be free from defects in materials and workmanship under normal use for a period of sixty (60) days from the date of original delivery to licensee pursuant to a schedule hereto (the "warranty period"). If a defect in such media occurs during the warranty period, the defective media may be returned to ProductNameKeywords, and ProductNameKeywords will replace such media without charge.
(B) ProductNameKeywords warrants that the licensed software owned by ProductNameKeywords shall perform substantially in accordance with the documentation during the warranty period. In the event any licensed software provided pursuant to a schedule hereto does not so perform during the warranty period, licensee shall, prior to the expiration of the warranty period, document the instance(s) of nonperformance to ProductNameKeywords in writing. Subject to the foregoing, ProductNameKeywords will (at its option) either repair or replace such licensed software or terminate the applicable schedule(s) and provide licensee a refund of any subscription fees actually paid by licensee for such licensed software for the month prior to the written notification to ProductNameKeywords. If requested by ProductNameKeywords, licensee will return any components of the related licensed materials and any copies thereof in licensee's possession.
(C) the remedies set forth in this section 11.1 shall be the sole and exclusive remedies available to licensee for any breach of warranty under this section 11.1.
11.2 The warranties set forth in section 11.1 are the sole and exclusive warranties given by ProductNameKeywords in connection with the licensed materials, any component thereof, any related services or otherwise under this agreement. ProductNameKeywords and its third-party licensors hereby expressly disclaim any and all other warranties, whether express or implied, including without limitation, warranties of merchantability or fitness for a particular purpose, warranties arising from course of dealing or course of performance, and any warranties of non-infringement. Beta and/or pilot versions of the licensed materials are provided "as is."
11.3 Without derogating the generality of the foregoing, ProductNameKeywords and its third-party licensors specifically do not warrant that (I) the licensed software or any components thereof will perform without interruption or error, or that all incidents will be corrected, (ii) the licensed materials (including the data and other information contained therein) will meet licensee's requirements, (iii) the licensed software will operate in the configuration which licensee may select for use, or (iv) data or other information generated by or contained in the licensed software will be accurate or complete. Neither ProductNameKeywords nor its third-party licensors shall be responsible for the accurate or complete transmission of data or other materials. The warranties set forth in section 11.1 shall not apply to any irregularities, errors, problems or defects arising from (I) modification of the licensed software by any party other than ProductNameKeywords or from accident, neglect, abuse, misuse or misapplication, (ii) failure of licensee to provide a suitable installation and operating environment, including but not limited to, failure to use supplies, materials, software and hardware platforms that meet the specifications set forth in the documentation, (iii) licensee's incorporation, attachment or engagement of any attachment, feature, program or device to the licensed software, if the licensed software would have conformed to the warranty set forth in section 11.1 but for such incorporation, attachment or engagement, (iv) use of the licensed software outside the scope of its intended purpose, as described in the documentation, or (v) licensee's failure to incorporate any update previously released by ProductNameKeywords that corrects such item. ProductNameKeywords reserves the right to (I) modify any licensed materials or substitute any materials contained therein so long as the new materials do not materially affect the functionality of the licensed software, and (ii) discontinue the licensing and/or support of any licensed materials.
12. Limitation of liability.
12.1 Except with respect to any breach of section 3 or section 9 hereof, in no event shall either party, or any third-party licensor, or their respective affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors or assigns, as such, be liable to the other party or anyone claiming under or through the other party for any punitive, exemplary, incidental, indirect, consequential or special damages under or in connection with this agreement, the licensed materials or any related software, services or information, including, without limitation, damages for loss of profits (excluding ProductNameKeywords's profits under this agreement), interest, revenue, data or use, or interruption of business, incurred by the other party or any third party, whether based upon contract, tort (including, without limitation, negligence, duty to warn and strict liability), warranty or any other legal or equitable grounds, even if such party has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy. In addition, ProductNameKeywords and its third-party licensors, and their respective affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors and assigns, as such, shall have no liability for losses resulting from unauthorized use of the licensed materials by licensee or those gaining access to the licensed materials, the ProductNameKeywords network or ProductNameKeywords's password protected internet sites as a result of licensee's acts or omissions.
12.2 Independent of, severable from, and to be enforced independently of any other enforceable or unenforceable provision of this agreement, in no event shall the total cumulative liability of ProductNameKeywords and its third-party licensors (and their respective affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors and assigns, as such), to licensee or any third party claiming under or through licensee for any and all losses, including, without limitation, causes of action and claims based upon breach of contract, tort (including, but not limited to, negligence, duty to warn and strict liability), breach of warranty, or any other legal or equitable grounds, under or in connection with this agreement, the licensed materials or any related software, services, or information, exceed the total subscription fees received by ProductNameKeywords from licensee under the relevant schedule during the consecutive twelve-month period immediately preceding the occurrence of the first such event giving rise to such liability .
12.3 ProductNameKeywords and licensee expressly acknowledge and agree that the limitations and exclusions contained herein (I) represent the parties' agreement as to the allocation of risk between the parties (including, without limitation, the possibility that a remedy may fail of its essential purpose and cause consequential loss) and that the amounts payable to ProductNameKeywords pursuant to this agreement reflect such allocation of risk, without which ProductNameKeywords would not have been willing to enter into this agreement, and (ii) form an essential basis of the bargain between the parties.
13. Intellectual property indemnity.
13.1 Notwithstanding the provisions of section 12.1 hereof, ProductNameKeywords shall indemnify and hold harmless licensee and its affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors and assigns, as such, from and against any losses which arise out of or result from any third-party claim that ProductNameKeywords does not have sufficient right, title or interest in the licensed software or the documentation to enter into this agreement or that the licensed software or documentation owned by ProductNameKeywords violates a united states patent in existence on the date of delivery, copyright, trademark, trade secret or other united states intellectual property right of any third party.
13.2 In the event that any such claim is made, or in ProductNameKeywords's opinion is likely to be made, ProductNameKeywords reserves the right, in its sole discretion, (I) to procure for licensee the right to continue to use the licensed software and the documentation, (ii) to replace the licensed software or the documentation to avoid infringement, (iii) to modify the licensed software or the documentation to avoid infringement, or (iv) to terminate the relevant license(s) and schedule(s) to this agreement without further cost, charge, liability or penalty to either party relating to such termination.
13.3 ProductNameKeywords and its third-party licensors shall have no obligation to the extent that any claim of infringement is based upon licensee's (I) use of the licensed software or the documentation in violation of this agreement, (ii) modification or marking of the licensed software or the documentation, or any portion thereof, where, in the absence of such modification or marking, the licensed software or documentation would not be infringing (unless such modification or marking has been specifically authorized in writing by ProductNameKeywords), (iii) use of the licensed software or the documentation in combination with other software, documentation, hardware or data, if use without such software, documentation, hardware or data would not be infringing, (iv) use of a superseded version of the licensed software or the documentation if infringement could have been avoided by the use of the current version, (v) use of the licensed software or the documentation in practicing any infringing process, (vi) use of the licensed software in a manner for which it was not designed, (vii) activities after ProductNameKeywords has notified licensee that ProductNameKeywords believes such activities may result in such infringement, (viii) designs, specifications or instructions, or (ix) use of any marks other than ProductNameKeywords's marks pursuant to section 10.1.
13.4 The provisions set forth in this section 13 shall be licensee's sole and exclusive remedies and ProductNameKeywords's sole liabilities and obligations for any claims brought against licensee based upon intellectual property infringement, whether upon the theory of warranty, indemnity or otherwise.
14. Indemnification procedures and subrogation.
14.1 Procedures. Promptly after receipt by any person entitled to indemnification under this agreement (the "indemnified party") of notice of a claim, or of the commencement (or threatened commencement) of any civil, criminal, administrative or investigative action or proceeding involving a claim, in respect of which the indemnified party will seek indemnification pursuant to this agreement, the indemnified party shall promptly notify the party that is obligated to provide such indemnification (the "indemnifying party") of such claim in writing. No failure to so notify the indemnifying party shall relieve the indemnifying party of its obligations under this agreement except to the extent that it can demonstrate damages or prejudice attributable to such failure. Except as provided in section 14.2, the indemnifying party shall be entitled to have sole control over the response to, defense and settlement of such claim, provided that, within fifteen (15) days after receipt of such written notice, the indemnifying party notifies the indemnified party of its election to so assume full control. In the event the indemnifying party does elect to so assume control: (I) the indemnified party shall be entitled to participate in the response to such claim and to employ counsel at its own expense to assist in the handling of such claim, (ii) the indemnifying party shall obtain the prior written approval of the indemnified party (which approval shall not be unreasonably withheld or delayed) before entering into any settlement of such claim or ceasing to defend against such claim if such settlement or cessation would cause injunctive relief to be imposed against the indemnified party, and (iii) the indemnifying party shall promptly reimburse the indemnified party for any legal expenses reasonably incurred by the indemnified party in connection with the defense of such claim prior to the indemnified party's receipt of the indemnifying party's notice of its election to assume full control over the response to such claim. After notice by the indemnifying party to the indemnified party of its election to assume full control, the indemnifying party shall not be liable to the indemnified party for any further legal expenses incurred by such indemnified party in connection with the defense of that claim. If the indemnifying party does not assume sole control over the response to such claim as provided in this section, the indemnifying party may participate in such response and the indemnified party shall have the right to respond to and defend the claim in such manner as it may deem appropriate, at the reasonable cost and expense of the indemnifying party, who shall be bound by any settlement. The indemnifying party shall promptly reimburse the indemnified party for such costs and expenses.
14.2 Exclusion. Notwithstanding anything set forth in section 14.1 to the contrary, in the event an indemnified party reasonably believes and so notifies the indemnifying party in writing that the applicable claim, even if fully indemnified for, is reasonably likely to have a material adverse effect on the indemnified party, then the indemnifying party shall not have the right to control the response to, defense and settlement of such claim, but shall have the right to employ separate counsel at its own expense to assist in the handling of such claim by the indemnified party. In such an event, (I) the indemnified party and its counsel shall consult, wherever reasonably practicable, with the indemnifying party and its counsel with respect to the status of the claim and any related litigation or proceedings, and (ii) the indemnified party shall bear the expense of its counsel.
14.3 Settlement. Where an indemnifying party has been given notice of a claim and assumed its responsibility to defend with respect thereto, the indemnifying party shall not be required to indemnify an indemnified party for any amount paid or payable by such indemnified party in the settlement of any claim which was agreed to without the written consent of the indemnifying party, which consent shall not be unreasonably withheld or delayed.
14.4 Subrogation. In the event that an indemnifying party shall be obligated to indemnify an indemnified party pursuant to this agreement, the indemnifying party shall, upon payment of such indemnity in full, be subrogated to all rights of the indemnified party with respect to the claims and defenses to which such indemnification relates.
15. Term.
15.1 $ 1995.00 including installation and lifetime updates.
16. General provisions.
16.1 Assignment. This agreement may not be assigned by licensee to any other person(s), firm(s), corporation(s) or other entities (by operation of law or otherwise) without the prior express written approval of ProductNameKeywords, and any attempt to assign without such approval shall be void and shall be deemed to be a material breach of this agreement.
16.2 Notices. Unless otherwise specified in this agreement, all notices, requests, demands, and other communications (other than routine operational or billing communications) required or permitted hereunder shall be in writing (with electronic mail or ProductNameKeywords postings to the ProductNameKeywords network or ProductNameKeywords internet sites deemed to be a "writing" for this purpose) and shall be deemed to have been received by a party (I) when actually received in the case of hand delivery against a signed receipt, (ii) two (2) business days after being given to a reputable overnight courier with a reliable system for tracking delivery, (iii) when sent by confirmed facsimile, (iv) upon receipt, when mailed by united states mail, registered or certified mail, return receipt requested, postage prepaid, (v) one (1) day after transmission by electronic mail with a copy sent by united states mail within 48 hours of such transmission, or (vi) upon posting by ProductNameKeywords to the applicable ProductNameKeywords network or the applicable ProductNameKeywords internet site, and (I) with respect to ProductNameKeywords, addressed to "ProductNameKeywords software registrar" at the address and/or facsimile number set forth on the ProductNameKeywords software subscription form, and (ii) with respect to licensee, addressed to licensee's point of contact, address and/or facsimile number set forth on the ProductNameKeywords software subscription form (unless licensee is a seller/servicer, in which case communications may be sent to the point of contact, address and/or facsimile number ordinarily used by ProductNameKeywords for transmittal to licensee of bulletins issued in connection with ProductNameKeywords's selling and servicing guides). A party may from time to time change its address, facsimile number or designee for notification purposes by giving the other party prior written notice of the new address, facsimile number or designee and the date upon which such change will become effective.
Any licensee that is a seller/servicer shall also be deemed to have notice of any matter published in ProductNameKeywords's selling and servicing guides and any bulletin, lender letter, announcement or other communication issued thereunder.
In addition to the provisions set forth in the first paragraph of this section 16.2, bulletins issued pursuant to section 16.6 of this agreement shall be deemed to have been received by licensee (I) three (3) days after being mailed by united states mail, postage pre-paid, (ii) one (1) day after transmission by electronic mail, or (iii) upon posting to the applicable ProductNameKeywords network or the applicable ProductNameKeywords internet site.
16.3 Governing law; severability. This agreement shall be governed by and construed solely and exclusively in accordance with the laws of the state of new york, without reference to or application of its conflicts of law principles. In the event that any provision of this agreement conflicts with the law under which this agreement is to be construed or if any such provision is held invalid, void or unenforceable by a court with jurisdiction over the parties to this agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intention of the parties in accordance with applicable law, and the remainder of this agreement shall remain in full force and effect.
16.4 Force majeure. Neither party shall be responsible for delays or failure of performance (other than the payment of money) resulting from acts beyond the reasonable control of such party. Such acts shall include, but not be limited to, acts of god, strikes, walkouts, riots, acts of war, epidemics, failure of vendors to perform, governmental regulations, power failures, earthquakes, or other disasters.
16.5 Headings. The titles and headings of the various sections and paragraphs in this agreement are intended solely for convenience of reference and are not intended to explain, modify or place any construction or limitation upon any of the provisions of this agreement.
16.6 Issued bulletins; amendments. ProductNameKeywords may issue hard-copy bulletins or electronic bulletins (via electronic mail or posted on the applicable ProductNameKeywords network or the applicable ProductNameKeywords internet site), from time to time, amending this agreement (or any schedule(s) hereto) on a prospective basis, effective on the date specified by ProductNameKeywords in the bulletin. Each bulletin shall be issued at least twenty (20) days before its effective date, except for bulletins relating to software and other materials provided by third-party licensors, which may be issued at any time prior to their effective date. Licensee shall have the right to reject any bulletin by providing written notice to ProductNameKeywords within fifteen (15) days after receipt of such bulletin. In the event that licensee rejects any bulletin, ProductNameKeywords shall be entitled to terminate this agreement or any schedule(s) hereto, effective either (I) as of the effective date of such bulletin, (ii) upon receipt by licensee of ProductNameKeywords's termination notice, or (iii) upon the termination date set forth in such notice, whichever is later. Unless licensee provides such rejection notice within the aforementioned fifteen (15) day period, licensee shall be deemed to have consented to such amendments and such amendments shall form part of this agreement (or any schedule(s) hereto) as of the effective date of such bulletin. Otherwise, the terms of this agreement (including any schedule(s) hereto) may be amended solely by a writing expressly purporting to create an amendment or supplement to this agreement and executed by a duly authorized representative of each party to be bound thereby. This agreement (including the schedule(s) hereto) may not be amended by any purchase order or other written instrument submitted by licensee, whether or not formally rejected by ProductNameKeywords. Terms or conditions contained in a schedule that modify or supplement this agreement shall only take precedence over this agreement with regard to the subject matter of such schedule.
16.7 Entire agreement. Except as expressly provided in this agreement, no representations or statements of any kind made by either party that are not expressly stated herein or in any amendment or schedule hereto shall be binding on such party. The parties agree that this agreement (including the schedule(s) hereto) shall constitute the complete and exclusive statement of the agreement between them, and supersedes all prior or contemporaneous communications, proposals or agreements, oral or written, relating to the subject matter hereof. Without limiting the generality of the foregoing, licensee acknowledges and agrees that this agreement supersedes and replaces any currently outstanding agreement(s) between licensee and ProductNameKeywords any schedules entered into pursuant to such agreement(s) shall be deemed to be schedules under this agreement without further action on the part of either party.
In addition, without limiting the generality of the foregoing, licensee acknowledges and agrees that ProductNameKeywords may, from time to time, provide licensee with marketing materials and other information (including, but not limited to, press releases, internet postings, responses to written and telephonic inquiries, fact sheets, periodic reports, product support information and other customer communications materials) relating to the licensed materials and other products or services and that such materials or other information will not be deemed to (I) include any representation or warranty by ProductNameKeywords or its third-party licensors unless such materials or information expressly provide that a particular statement is a representation or a warranty for purposes hereof, (ii) form part of this agreement unless such materials or information (or this agreement) expressly provide otherwise, or (iii) constitute an inducement for licensee to enter into or extend the term of this agreement.
16.8 Jurisdiction. Any and all disputes between the parties that cannot be settled by mutual agreement shall be resolved solely and exclusively in the courts located within the state of new york, and licensee hereby consents to the jurisdiction of such courts and irrevocably waives any objections thereto, including without limitation, on the basis of improper venue or forum non conveniens.
16.9 Third-party beneficiaries. The parties acknowledge and agree that applicable third-party licensors are intended beneficiaries of this agreement and shall be entitled to rely upon and directly enforce the terms and conditions hereof. Except as provided in the foregoing sentence, nothing in this agreement is intended to, or shall, create any third-party beneficiaries, whether intended or incidental, and neither party shall make any representations to the contrary.
16.10 Restricted rights. If licensee is any unit or agency of the u.s. Government, then the following provision applies:
U.s. Government rights
Use, duplication, or disclosure by the u.s. Government is subject to restrictions set forth in this agreement and as provided in dfars 227.7202-1(a) and 227.7202-3(a) (1995), dfars 252.227-7013(c)(1)(ii) (oct 1988), far 12.212(a) (1995), far 52.227-19, or far 52.227-14 (alt iii), as applicable. ProductNameKeywords, po box 409, new york, ny 10276
16.11 Facsimiles; other documents. The parties acknowledge and agree that copies of executed documents received via facsimile transmission shall be deemed to be originals for all purposes. The parties further acknowledge and agree to the validity and enforceability of ProductNameKeywords's shrink-wrap, click-wrap and similar forms of agreement which the parties may enter into from time to time in connection with the licensed software, this agreement and/or other ProductNameKeywords products and services.
16.12 No implied waiver. No term, provision or clause of this agreement shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and executed by a duly authorized representative of the party to be bound thereby. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.
16.13 Independent parties. The parties are independent contractors. Nothing in this agreement shall be construed to make the parties partners, joint venturers, representatives or agents of each other, nor shall either party so represent to any third person. No employer-employee relationship is intended to be created by this agreement.
Schedule A
Pricing
Pricing for ProductNameKeywords is as follows: $997.00 including bonuses and lifetime updates.
ProductNameKeywords reserves the right to make promotional discounts available for new or renewing customers that may supersede the prices set out above. The programs available from BloggingMaster.com are guaranteed to work per description when correctly installed unless the code or related files are changed.
This guarantee is voided if the code or related files have been changed by the user.
Refunds:
We offer a 30 Day Guarantee on ALL software products and a very simple refund policy.
If our software fails to satisfy you from the time you start to use it, your purchase is backed with a 100% money back guarantee. Refunds must be requested and all software must be returned within 30 calendar days of your purchase of the software. Before you ask for a refund, you must contact us directly and we will attempt to remedy your issue. If you’re having trouble, chances are we’ve encountered the same problem in the past and will be able to successfully help you.
Refunds will not be given to those who simply want to test drive the software or are unhappy with their results. Though our tools are designed to be used with a minimum of effort and using our tools can mean the difference between good search engine rankings and bad, the burden ultimately falls on the buyer, not the software. In short, be sure you can and will use the software before you purchase - refunds will only be given when the software fails to work and not because you didn't give any effort.
Therefore, refunds will be given at the discretion of ProductNameKeywords staff, and only if the product is considered to be at fault by ProductNameKeywords staff and the user has allowed the ProductNameKeywords staff to attempt repair of installed script.
In case of refund, we withdraw all code, ideas, and anything else that we provided in relation to the program(s) and/or project(s) being refunded. By accepting the refund, you relinquish any associated rights you may previously have had and promise not to use, display, or otherwise control anything related to the refund.
If you’d like to see a demo before you purchase, please contact us via email or call us at the telephone number listed on the main website. Rest assured, you’re in good hands and you can ask as many questions as you want prior to your purchase.
Copyright © 2010 ProductNameKeywords.com and BloggingMaster LLC All Rights Reserved. We take your privacy very seriously; our privacy policy is here. By purchasing anything from this website, you agree to the terms of service herein, and our earnings disclaimer found here. By entering your email address you are opting in to our email list, and you can unsubscribe at anytime.
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