OVERVIEW OF LICENSE TERMS
AGREE OR RETURN SOFTWARE FOR FULL REFUND: By installing, loading or otherwise using the Software, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, do not install or use the Software, return the Software and receive a refund of the price you may have paid.
WARRANTY: The Software is guaranteed as explained is this Agreement and in the Software Certificate, and you agree to receive no additional warranties.
LIABILITIES: The potential liabilities of both Parties are severely limited.
SOFTWARE LICENSE: The Software is protected by intellectual property laws and treaties. The Licensor licenses to you the version of the Software supplied with this License Agreement. The Software is not being sold to you, and you may use the Software only to the extent set forth in this Agreement.
SOFTWARE IDENTIFICATION: For your convenience, in case you misplace this License Agreement, the Software to which this Agreement applies, is listed in Attachment A hereto which is incorporated into this Agreement by reference.
1. GRANT OF LICENSE.
This Agreement grants the Licensee, either an individual or a single entity, personally a limited, permanent, non-exclusive, non-sublicenseable license conveying the following rights, effective immediately with the full payment by Licensee of the licensee fee to the Licensor:
(a) Installation and Use.
(i) The Licensee may install, load and use the Software on one electronic device such as a PC or smartphone of the type for which the Software has been designed (hereafter the "Device").
(ii) At any time, the Licensee may obtain additional licenses or an expansion of this license for use on additional Devices by giving notice to the Licensor and payment to the Licensor of the then effective licensee fee quoted by the Licensor.
(iii) The Licensee shall install the Software upon receipt and immediately notify the Licensor of any defects that the Licensee may claim under the warranty provisions of this Agreement.
(b) Reproduction or Modification.
Except for one backup copy of the binary version of the Software program, the Licensee may not reproduce, distribute, decompile, reverse engineer, emulate, clone or translate the Software, and any authorized modification by the Licensee must be limited to the minimum reasonably required to operate the Software in the Licensee's hardware and software environment. Software designed and designated by Licensor to run in multiple copies on one Device may be copied and used in multiple copies on the same device.
(c) Access to Source Code.
(i) The Licensor does not provide the Licensee with access to the source code except on the financial and legal terms of a separate Software Source Code Access Agreement. Unless expressly stated, the Licensor does not warrant to safeguard the source code to the Software or to place it in escrow for the Licensee's or any third party's benefit.
(ii) In the event that the Licensee has obtained rights from the Licensor to access the source code to the Software, the Licensee warrants to use the source code only for the purpose of adapting the Software to the Licensee's specific setup and not for any other purpose other than facilitating the interoperability of the Software with the Licensee's software and hardware.
(i) The Licensor welcomes any feedback on the Software but this Agreement does not entitle the Licensee to any support, enhancement or upgrade. Support for the installation, loading and use of the Software is available from the Licensor under the separate financial and legal terms of a Software Support and Maintenance Agreement.
(ii) The Licensee may request from the Licensor a quotation for modification of the Software by the Licensor to enhance the interoperability of the Software with the Licensee's software and hardware, and the Licensor shall provide, at its discretion, an offer to perform the requested service.
The Licensee shall be responsible for collecting the Software at its expense from Licensor's location at a time mutually acceptable to the Parties (hereafter the "Delivery").
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
(a) Separation of Components.
The Software is licensed as a single product. Its component parts may not be separated for any purpose.
(b) Software Transfer.
Unless expressly approved in writing by the Licensor, the Licensee warrants not to transfer the Software to any third party. Upon Licensor's approval, the Licensee may transfer all of its rights under this Agreement to an approved third party (the "Transferee") provided the Transferee agrees to the terms of this Agreement and the Licensee and the Transferee notify the Licensor of the completed transfer.
(i) Without prejudice to any other rights, the Licensor may terminate this Agreement, with immediate effect, at its discretion if the Licensee fails to comply with the terms and conditions of this Agreement. Upon termination, the Licensee warrants to destroy all copies of the Software and all of its component parts and return the media on which the Software was delivered to the Licensor. Upon completion, the Licensee shall deliver to the Licensor a signed declaration certifying compliance with this subsection. The warranty provisions of this Agreement shall expire automatically with Licensee's failure to comply with the terms and conditions of this Agreement as well as Licensee's failure to pay Licensor all or part of a license fee.
(ii) In the event of a breach of this Agreement through use of the Software on more Devices than permitted hereunder, the Licensor may invoice the Licensee, and the Licensee shall pay to the Licensor, as liquidated damages for damages otherwise not reasonably calculable and not as a penalty, US$50 for each additional Device on which the Software has been installed. At their discretion, the Parties may then enter into a prospective license for future use on additional Devices. This liquidated damages provision does not apply to any other violation of this Agreement.
(iii) With any unauthorized use of the Software and in the event of Licensee's failure to timely pay any license fee due hereunder, the Licensee expresses its irrevocable authorization to the Licensor for any measure to remove the Software from the Licensee or to disable it.
The Software may not be sold, rented, leased, loaned or be included in another product or be made available remotely to third parties.
3. COPYRIGHT AND OTHER RIGHTS.
(a) All right, title and interest in and to the Software and related trademarks, trade names, copyrights, trade secrets and other intellectual property rights are owned by the Licensor or its suppliers, and they are protected by copyright laws, trademark laws, trade secret laws and international treaty provisions. All rights, title and interest in and to the Software, its parts and components regardless of their level of integration or separability, the Software remains in the ownership of the Licensor.
(b) The Licensee shall acquire only the rights stated in this Agreement, except that the Licensor grants additional rights in the event they should be required under Section 5 of this Agreement.
(c) At its discretion, the Licensee may generate one copy of the binary version of the Software product for use on its Devices, and in that event retain the original Software obtained from the Licensor solely for backup or archival purposes, unless otherwise stated herein.
(d) Licensee shall retain the original of this Agreement together with the Software as evidence of the license to enjoy the rights granted herein. The Licensee may destroy the electronic version of this Agreement after generating a printed copy thereof.
(e) Except when required by law or law enforcement agencies or if the Software should be released by the Licensor into the public domain, the Licensee shall treat the Software, its modifications made or provided under Section 1 hereof and its source code as secret and confidential information and warrants to disclose it only to personnel with a need to know who have signed with the Licensee a binding non-disclosure or confidentiality agreement that extends to the Software. Licensee acknowledges that the Licensor would be irreparably and immediately harmed by a violation of this provision, and Licensor may seek any available remedy under equity or law, which may include injunctive relief and punitive damages, against the Licensee.
4. U.S. GOVERNMENT RESTRICTED RIGHTS.
The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable and as amended.
If the Licensee should acquire the Software on behalf of the United States Government, the following provisions apply: The United States Government acknowledges Buck Rocks' representation that the Software and Documentation were developed at private expense and no part of them is in the public domain. For the purposes of this section, the Government also acknowledges Buck Rocks' representation that the Software is "commercial computer software" as that term is defined in 48 C.F.R. 12.212 of the Federal Acquisition Regulations ("FAR") and is "Commercial Computer Software" as that term is defined in 48 C.F.R. 227.7014 (a)(i) of the Department of Defense Federal Acquisition Regulation Supplement ("DFARS"), as amended. The Government agrees that if the Software is supplied to any unit or agency of the United States Government, the Government's rights in the Software and its documentation will be only as specified in this Agreement.
Restricted Rights Legend
The Contractor/Manufacturer is: Buck Rocks, www.BuckRocks.com.
5. ADDITIONAL RIGHTS UNDER LOCAL LAWS.
If the Licensee should acquire the Software in, or for use in, a jurisdiction that affords you more extensive rights than this Agreement and the laws of such jurisdiction shall be determined by a court or arbitral tribunal to apply to this Agreement, the Licensee may use the Software in accordance with the minimum rights that such jurisdiction affords a Licensee of software such as the Software subject to this Agreement, and in the event of a material inconsistency between the terms of this Agreement and the minimum rights afforded to the Licensee under such jurisdiction, the Licensee may elect consistently either the benefits provided by this Agreement or those afforded by the laws of such jurisdiction. In the event that such laws do not specify a term to exercise any additional rights against the Licensor, Licensee's additional rights shall be limited to the warranty period specified in Section 6 hereof.
6. LIMITED WARRANTY.
(a) If media collected by Licensee from Licensor to use the Software are defective, Licensee shall return the complete media to the Licensor, postage prepaid, within 60 days of delivery with a dated receipt or other evidence of the date of Delivery and Licensor shall replace the media, at its expense, within reasonable time.
(b) The Licensor warrants the Software media made available for Delivery to be free from defects in materials and workmanship under normal use for a period of sixty (60) days from the date of Delivery. Licensor's entire liability and Licensee's exclusive remedy will be limited to replacement of the defective media upon return of the media to the Licensor within the warranty period. Licensor shall not be responsible for replacement of any media damaged by accident, Licensee's modification, abuse or misapplication.
(c) NO ADDITIONAL WARRANTIES.
THE LICENSOR PROVIDES THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT AND THE SOFTWARE.
Because of the various hardware and software environments into which the Software may be placed, THE LICENSOR EXPRESSLY DISCLAIMS ANY OTHER WARRANTY. BEYOND THE WARRANTIES EXPRESSLY STATED HEREIN, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY ADDITIONAL EXPRESS WARRANTY OF ANY KIND NOR ANY IMPLIED WARRANTY, IN PARTICULAR, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, FREE OF ERRORS OR BENIGN TO LICENSEE'S OPERATING SYSTEM, OTHER SOFTWARE OR ITS DEVICE. THE LICENSEE ASSUMES THE ENTIRE RISK OF USE (FOR INSTANCE, PERFORMANCE, ACHIVEMENT OF ANY OBJECTIVE, INTERFERENCE WITH OTHER SOFTWARE OR HARDWARE) OF THE SOFTWARE EXCEPT TO THE EXTENT THE LICENSOR HAS EXPRESSLY STATED ANY WARRANTIES IN THIS AGREEMENT.
(d) In the event that these warranties fail, Licensor's liability to Licensee shall be limited to the full amount paid by Licensee to Licensor for the Software licensed hereunder.
7. NO LIABILITY FOR DAMAGES.
(a) Good data processing procedure dictates that any software be thoroughly tested with non-critical data before relying on it. You or your authorized user must assume the entire risk of using the Software. ANY LIABILITY OF THE SELLER WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPLACEMENT OR REFUND OF PRICE PAID BY LICENSEE TO LICENSOR, and as further stated hereafter and in Section 6(d) hereof.
(b) Except as otherwise expressly stated in this Agreement, in no event shall the Licensor of this Software be liable for any direct or indirect, consequential, actual, special or exemplary damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss, availability of data or access to programs or data) arising out of the use of or inability to use this product, even if the Licensor of this Software has been advised of the possibility of such damages, regardless of whether the claim or action lies in contract, negligence, tort or otherwise, even if either Party has been advised of the possibility of such damages. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to certain Licensees, and the rights of such Licensees shall be limited to the minimum rights afforded under the laws of such jurisdictions in accordance with Section 5 of this Agreement.
(c) In no event, other than the case of Section 2(c)(ii) hereof and the violation of Licensor's intellectual property rights under Section 3 hereof, shall the cumulative liability of the Licensee to the Licensor nor that of the Licensor to the Licensee for all damages, losses, and causes of action (whether in law or equity, and in contract, tort, including negligence, or otherwise) exceed the amount paid by Licensee for the Software.
8. THIRD PARTY LICENSES.
The Licensee acknowledges that the use of the Software may invalidate any guarantee and or warranty expressed in its other software license agreement(s) that it may have accepted. Use of the Software does not supersede or provide any remedy for any guarantee or warranty that may be invalidated. All liabilities from use or misuse of the Software lie with the Licensee except as expressly stated in this Agreement.
9. EXPORT LAW.
Export of the Software may be subject to compliance with the rules and regulations promulgated from time to time by the Bureau of Export Administration, United States Department of Commerce, which restrict the export and re-export of certain products and technical data, and similar government agencies in other nations. If the export of the Software is controlled under such rules and regulations, then the Software shall not be exported or reexported, directly or indirectly, (a) without all export or reexport licenses and governmental approvals required by any applicable laws, or (b) in violation of any applicable prohibition against the export or reexport of any part of the Software.
(a) This Agreement will be governed by the laws of the State of Maryland, exclusive of its conflicts of laws rules and treaties and exclusive of the International Convention on the Sale of Goods, and the Licensor and the Licensee consent to the jurisdiction and venue of the courts of the State of Maryland.
(b) If any action is brought by either party to this Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorneys fees and expenses of litigation for which the plaintiff party shall post and evidence reasonable bond at the time of service of a complaint.
(c) Headings are included for convenience only, and shall not be considered in interpreting this Agreement.
(d) This Agreement does not limit any rights that the Licensor may have under trade secret, copyright, patent or other laws except as stated herein.
(e) No agents, employees, distributors, and dealers of the Licensor are authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on the Licensor.
(f) Should any word, sentence or term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining word, sentence or terms hereof.
(g) The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
(h) THE LICENSEE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS, AND THAT THIS AGREEMENT AND THE SOFTWARE CERTIFICATE ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THEIR SUBJECT MATTER AND SUPERSEDE ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
(j) This Agreement is deemed entered into at Bethesda, Maryland, and shall be construed as to its fair meaning and not strictly for or against either party.
(i) This Agreement is Copyright 2003 Berliner, Corcoran & Rowe, LLP, 1101 17th Street, NW, Washington, DC, www.bcr.us, 1 202 293 5555, and may not be used by the Parties or any third party for any purpose other than documenting the agreement between the Parties, without the written permission of the author.
The Buck Rocks Software subject to this
Buck Rocks SINGLE DEVICE SOFTWARE LICENSE AGREEMENT is
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