DEMO LICENSE AGREEMENT
THIS DEMO LICENSE AGREEMENT (this ?Agreement?) is entered into as of the earlier of the date of installation or download of the Software, by and between Lounge Pants Software, Ltd., a Kansas corporation (?Licensor?), and the user of the Software (?Licensee?).
A. Licensor is the owner and developer of certain small business financial and recording keeping software, and Licensor desires to offer the use of such software to Licensee for the purpose of evaluating such software, but only on the terms and conditions stated herein.
B. Licensee is willing to accept a temporary license to use Licensor?s untested software for the purpose of evaluating the same on the terms and conditions herein.
In consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1.Consent to Terms. The use of the Software, Documentation, and/or any services provided by Licensor as outlined herein are subject to the terms and conditions of this Agreement. By viewing, downloading, installing, accessing, or otherwise using the Software or Documentation, you agree to be bound by the terms and conditions set forth in this Agreement. IF YOU DO NOT AGREE TO THIS AGREEMENT YOU MAY NOT VIEW, DOWNLOAD, INSTALL, ACCESS, OR OTHERWISE USE THE SOFTWARE OR DOCUMENTATION, AND YOU MUST IMMEDIATELY RETURN THE SAME TO LICENSOR AND DESTROY ALL COPIES THEREOF. USE OF THE SOFTWARE WITHOUT AGREEMENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY CONSTITUTE COPYRIGHT INFRINGEMENT AND/OR OTHER VIOLATIONS OF LICENSOR?S RIGHTS.
2.Definitions. Except as may otherwise be defined herein, the following terms are defined for the purposes of this Agreement as follows:
(a)?Documentation? means the written or electronic documents, help files, and other textual matter that describes the standard implementation and support procedures, which is included with the Software.
(b)?Software? means the package of small business financial and recordkeeping computer software programs currently known as w/Ease Demo, in object code or restricted source code form, together with all executables, modules, plug-ins, libraries, models, databases, icons, graphics, and other materials provided by Licensor to Licensee. Unless specifically indicated or the context requires otherwise, the term Software shall include all Updates to the Software provided to Licensee by Licensor.
(c)?Update? means any modification, correction, enhancement, deletion, or substitution to Software, including but not limited to, any data file or module thereto, that may be provided by Licensor or a third party.
3.Term. Except for those provisions which shall survive the termination of this Agreement, this Agreement shall commence on the earlier of installation or download of the Software and shall continue for a period of ninety (90) days, unless terminated earlier pursuant to Section below.
4.Temporary and Limited License. Subject to the terms, conditions, and limitations set forth in this Agreement, Licensor hereby grants to Licensee during the term of this Agreement a limited, non-exclusive, non-transferable, non-proprietary License to do the following: (a) solely in support of the internal business activities of Licensee install, use, and execute one (1) copy of the Software and use the Documentation only in conjunction with the installation and use of the Software; and (b) make one (1) back-up copy of the Software and Documentation solely for archival purposes. The License granted hereunder does not include any other rights except as expressly specified herein. Any use or copying of the Software or Documentation not expressly authorized hereunder is prohibited and a breach of this Agreement. The license granted hereunder does not include, and Licensee shall have the sole responsibility to obtain at its expense any hardware, equipment, network access, and other software (including, without limitation, operating system software) as necessary to use the Software.
5.Maintenance and Support. Licensor may, but has no obligation to, provide Licensee with telephone and other support regarding the Software. The amount, level, and duration of any support provided shall be at Licensor?s sole and absolute discretion, and such support may be discontinued and/or resumed at any time. Licensor may, but has no obligation to provide Updates and other types of maintenance for the Software. The amount, level, and extent of any such maintenance shall be at Licensor?s sole and absolute discretion.
(a)Title to Licensed Programs and Documentation. All right, title, and interest in and to the Software and the Documentation, including, without limitation, the media on which the same are furnished to Licensee, are and shall remain the sole and exclusive property of Licensor. Except for the License, Licensee acknowledges that no right, title, or interest in or to the Software or the Documentation is granted pursuant to this Agreement, and no such assertion shall be made by Licensee.
(b)Title to Updates. All right, title, and interest in and to any Updates to the Software or Documentation shall lie with Licensor. While Licensee shall have no right and is prohibited from modifying, reverse engineering, reverse compiling, or otherwise attempting to discern the source code or other proprietary aspects of the Software and Documentation, if an Update or derivative work of the Software or Documentation is developed by Licensee or obtained by Licensee from a third party, all right, title and interest in such Update shall lie with Licensor, and Licensee hereby assigns to Licensor all of its right, title, and interest in and to the same, and Licensee shall do all such things required by Licensor to perfect Licensor?s rights in the same.
(c)Proprietary Materials. Licensee acknowledges that the Software and Documentation are works copyrighted under federal copyright law and embody valuable confidential and secret information of Licensor, the development of which required the expenditure of considerable time and money by Licensor. Except as expressly authorized herein, Licensee shall not in any manner or under any circumstances use, copy, modify, enhance, merge, reverse engineer, reverse assemble, decompile, or in any way alter the Software or Documentation or any copy, adaptation, transcription, or merged portion thereof or otherwise attempt to derive source code therefrom. Licensee shall not permit any person to remove any proprietary or other legend or restrictive notice contained or included in any material provided by Licensor, and Licensee shall not permit any person to reproduce or copy any such material except as specifically provided in this Agreement. Licensee agrees to maintain any and all of Licensor?s copyright and other notices on the Software and Documentation and shall reproduce such notices on any and all permitted copies, in whole or in part, thereof.
(d)Secure Handling and Inspection. Licensee shall keep the Software and the Documentation on its premises, safe and secure and to preclude any person other than Licensee and its employees from having access thereto. Licensee hereby permits Licensor reasonable access to all premises where the Software may be installed or used, during normal business hours, and upon reasonable notice in order to inspect the Software and its operations and to confirm compliance with the terms hereof.
7.Warranty Disclaimer and Limitation of Liability.
(a)Disclaimer. Licensee understands and agrees that the Software and Documentation are demonstration versions, and, therefore, may contain errors, faults, and bugs, and the Software and Documentation may lack certain functionality. Licensor makes no warranty of any kind, express or implied, with regard to the Software or Documentation. The Software and Documentation are licensed to Licensee on an ?as is? basis only. Licensor does not warrant or represent that the operation of the Software will be uninterrupted or error free, or that any defects in the Software or Documentation are correctable or will be corrected. LICENSOR DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR INFRINGEMENT.
(b)Limitation of Liability and Damages. Licensee expressly agrees that in no event shall Licensor be liable under for any special, indirect, incidental, exemplary or consequential damages, or any damages whatsoever resulting from loss of use, data or profits, arising out of or in connection with Licensor?s performance or non-performance under this Agreement or for any other reason, whether in an action of contract or tort (including, without limitation, negligence), whether or not Licensor has been advised of the possibility of such damages. In addition, without limiting the foregoing, in all events the remedies available to Licensee shall not exceed the amount of the fees (exclusive of expense reimbursements) actually paid by Licensee to Licensor with respect to the specific good(s) or service(s) that directly caused the loss or damage.
(c)Limitation of Claims. No claim, regardless of form, which in any way arises out of this Agreement, may be made, or such claim brought, under this agreement more than one (1) year after the claim shall arise.
(a)Conditions Licensee shall be entitled to utilize the Software and Documentation until the earliest of (i) the period of time set forth in Section above after which time period this Agreement shall automatically terminate, (ii) written notice of Agreement termination is issued by either party, or (iii) any point Licensee becomes insolvent, is declared a bankrupt, assigns assets for the benefit of creditors, has a petition in bankruptcy filed against it, or takes advantage of any insolvency or bankruptcy laws, whichever occurs earlier. This Agreement may be terminated at any time if either party gives fifteen (15) days prior written notice of termination to the other party.
(b)Action Upon Termination. In addition to any other remedies Licensor may have, upon termination of the License, Licensee shall immediately return to Licensor the Software, Documentation, Confidential Information (as defined in Section ), and copies thereof, or upon request by Licensor, in its sole discretion, destroy the same and certify in writing that same have been destroyed together with the manner, date, and time of such destruction.
(c)Survival of Terms. The provisions of Sections , , , , and (and all other provisions which by their nature would extend beyond the term of this Agreement) shall survive the termination of this Agreement.
9.Confidential Information. Licensee, on its own behalf and on behalf of its employees, officers, directors, agents, and affiliates, during the term of this Agreement and thereafter, covenants and agrees that it will not use, disclose, divulge, disseminate or otherwise make available to any third party any Confidential Information or otherwise make use of any Confidential Information, without the prior written consent of Licensor except as expressly allowed herein. For purposes hereof, ?Confidential Information? shall mean the terms of this Agreement and all other agreements between Licensor and Licensee; any business proposals submitted by Licensor; such written information provided to Licensee that is marked ?Confidential? (or words of like effect) and in the case of information disclosed orally, such oral information that is reduced to writing, marked ?Confidential? (or words of like effect), and sent to Licensee within ten (10) days after disclosure; the Software; and Documentation. Licensee recognizes and acknowledges that the use or disclosure of Confidential Information in a manner inconsistent with the provisions of this Agreement shall cause Licensor immeasurable damage for which adequate remedy at law may not be available. Licensor shall therefore be entitled to obtain injunctive and other equitable relief for the breach or threatened breach of this section, without the requirement to post bond. The rights under this section shall be cumulative of all other rights of Licensor.
10.Export Controls. Licensee acknowledge that the Software and Documentation must be exported in accordance with U.S. Export Administration Regulations and diversion contrary to U.S. laws is prohibited, and Licensee acknowledges it is its ultimate responsibility to comply with any and all import and export restrictions, and other applicable laws, in the U.S. or elsewhere, and that Licensor has no further responsibility after the initial distribution to you within the original country of sale. Licensee represent that neither the United States Bureau of Export Administration nor any other federal agency has suspended, revoked or denied Licensee?s export privileges, and Licensee will not use or transfer the Software for end use relating to any nuclear, chemical or biological weapons, or missile technology unless authorized by the U.S. Government by regulation or specific license.
(a)Independent Parties. The parties acknowledge, one to the other, that Licensor is an independent contractor to Licensee, and Licensor may engage in other business activities at its sole discretion. This Agreement does not in any way create or constitute a relationship of employment, partnership, or a joint venture between the parties.
(b)Non-Assignment. Licensee?s rights and obligations under this Agreement may not be assigned without the prior written consent of Licensor. This Agreement shall benefit the parties and their respective successors and permitted assigns.
(c)Force Majeure. Licensee agrees that Licensor shall not be liable for any losses and damage, including consequential damages, detention, or delay or failure to perform the Services resulting from causes beyond the control of Licensor including, but not limited to, acts of God, acts or omissions on the part of Licensee, delays in transportation, failure to obtain supplies not caused by the negligence of Licensor, changes in governmental regulations, war, or civil disturbance.
(d)Notices. All notices which are permitted or required under this Agreement shall be in writing and delivered personally, or by certified mail, postage prepaid, addressed to the parties at the addresses set forth on the signature page below, or such other address as a party shall provide by notice.
(e)Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions of this Agreement shall remain in full force and effect, provided that in such event the parties agree to negotiate in good faith enforceable substitute provisions which most nearly effect the parties intent in entering into this Agreement.
(f)Governing Law; Venue. This Agreement shall be construed in accordance with the laws of the State of Kansas, applicable to contracts entered into and solely performed therein, without regard to that body of law pertaining to conflicts of law, and expressly excluding the United Nations Convention on Contracts for the International Sale of Goods, with proper venue with respect to any dispute hereunder being exclusively in the City of Wichita, County of Sedgwick, State of Kansas.
(g)Waiver. No waiver of any breach or default hereunder shall be considered valid unless in writing and signed by the party giving such waiver, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature.
(h)Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall be deemed one original.
(i)No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any party other than the parties hereto and their respective corporate affiliates, heirs, successors and assigns, any rights or remedies under or by reason of this Agreement.
(j)Attorneys? Fees. In the event any dispute or litigation arises hereunder between any of the parties hereto, their heirs, personal representatives, agents, successors or permitted assigns, the prevailing party shall be entitled to all reasonable costs and expenses incurred by it in connection therewith (including, without limitation, all reasonable attorneys and paralegals fees and costs incurred before and at any trial, arbitration, or other proceeding and at all tribunal levels), as well as all other relief granted in any suit or other proceeding.
(k)Integration and Amendment. This Agreement and all schedules and exhibits referenced herein constitutes the entire Agreement of the parties superseding and extinguishing all prior agreements or understandings, representations or warranties, relating to the subject matter hereof. This Agreement may not be modified, or amended except by written agreement specifically referring to this Agreement signed by the parties hereto.
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