SpywareBlaster Network Version License Agreement
You are purchasing a license for SpywareBlaster® Network Version (along with the other items noted below, the "SOFTWARE PACKAGE"). The SOFTWARE PACKAGE includes the SpywareBlaster Network Version application, associated documentation and an associated database. Purchase, installation and use of the SOFTWARE PACKAGE is expressly made subject to your acceptance of the terms and conditions set forth below.
SOFTWARE PACKAGE Terms and Conditions
Please read this document carefully. This is the Software Licensing Agreement (the "Agreement") pursuant to which you (meaning you and your company, organization, or employer, the “LICENSEE”) may download, install and use the software, associated documentation and associated database files identified above (the "SOFTWARE PACKAGE"). Unless otherwise specified, "you" shall mean you and your company, organization or employer. Installation and use of the SOFTWARE PACKAGE is absolutely conditioned upon your acceptance and assent to the terms and conditions contained herein. This offer expressly limits acceptance to the terms stated herein which cannot be waived, varied, modified or amended in any manner except in writing by BrightFort LLC (the “LICENSOR”). LICENSOR expressly objects to and rejects any additional or different terms in any response to this offer. Upon LICENSEE's acceptance, the terms and conditions stated in this offer shall become the agreement of the parties for the matters state herein. Any portion deemed invalid or unenforceable shall be struck and the remainder of this Agreement shall continue to be effective and binding.
IF YOU CANNOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT PROCEED WITH PURCHASE, INSTALLATION AND/OR USE OF THE SOFTWARE PACKAGE.
SOFTWARE PACKAGE License
Licenses to use the SOFTWARE PACKAGE for any LICENSEE require the payment of associated non-refundable fees. Use of the SOFTWARE PACKAGE without an appropriate license is prohibited.
Subject to all the provisions and conditions of this Agreement, LICENSOR hereby grants and LICENSEE hereby accepts a non-exclusive, non-transferable, annual and renewable right and license to install and use the SOFTWARE PACKAGE on up to but no more than the number of computers (seats) specified by the LICENSEE at the time of payment, such computers to be based at LICENSEE’S place of business. Licenses are not automatically renewed and are instead subject to annual renewal which must be initiated by the LICENSEE .
1. General License Terms and Conditions:
By installing and using the SOFTWARE PACKAGE and/or each time you agree to be bound by the terms and conditions of this Agreement, you are stating to LICENSOR that you personally are at least 18 years of age and: (i) are either acting on your own behalf as an individual or (ii) have been authorized by your employer or principal to enter into this Agreement as binding on your employer or principal and all end-users for such LICENSEE entity.
LICENSEE shall use the SOFTWARE PACKAGE only at LICENSEE’S place(s) of business and shall not allow access to, or use of, the SOFTWARE PACKAGE through any computers based outside of LICENSEE’S place(s) of business. Laptops, tablets and other portable computers running compatible operating systems may be included only where such laptops are provided by LICENSEE to its employees or consultants; are expressly provided solely for, or primarily for, business purposes and where such laptops are routinely and regularly logged into LICENSEE's local or wide area network. LICENSEE shall use the SOFTWARE PACKAGE solely for LICENSEE's internal use and shall not allow access by or the use of the SOFTWARE PACKAGE for the benefit, direct or indirect, of any parent, subsidiary, affiliated entities, or third parties, including without limitation any assignment, sublicense, rental, lease, or use in a service bureau capacity. LICENSEE shall not (a) evaluate or use the SOFTWARE PACKAGE for the purpose of competing with LICENSOR in any manner; or (b) facilitate the evaluation or use of the SOFTWARE PACKAGE for the purpose of competing with LICENSOR in any manner. LICENSEE may not assign either this Agreement or the license granted herein. The SOFTWARE PACKAGE may not be disclosed, sublicensed, published, released, or transferred to another party by LICENSEE, without the prior written consent of LICENSOR. No transfer of ownership is intended by this Agreement. All rights not expressly granted to LICENSEE in this Agreement are reserved by LICENSOR.
This Agreement shall have an initial term of one year, extending from date of receipt of payment from LICENSEE. This annual term shall be renewable for subsequent one year periods only upon acceptance of the latest license for the SOFTWARE PACKAGE, and upon payment of the non-refundable annual license fee appropriately calculated according to the then-current usage by LICENSEE, taking into account LICENSEE's growth projections for the upcoming year. LICENSOR reserves the right to terminate or suspend part or all of the rights and licenses granted herein (including without limitation, software license rights as well as rights to future versions or other upgrades) for any violation of the terms and conditions set forth herein which remains uncured for a period of thirty (30) days after LICENSOR issues written notice of such violation, including, without limitation any default or withdrawal of payment. LICENSEE agrees to pay all applicable costs and attorney's fees, if permitted by law, for the collection of payments and other charges due under this Agreement.
Within thirty (30) days after cancellation, whether for default of any provision of this Agreement or for lack of license renewal, LICENSEE shall uninstall the SOFTWARE PACKAGE as instructed and also delete and/or destroy any and all portions of the SOFTWARE PACKAGE and any additional information, written documents, flow charts, logic diagrams, source code, test materials, and the like, relating to the SOFTWARE PACKAGE and all copies thereof in whatever form, including partial copies, which may have been made by LICENSEE. Upon LICENSOR's written request, LICENSEE shall provide a signed officer's certification of LICENSEE's compliance with the terms of this paragraph.
LICENSOR shall provide any and all updates and enhancements to the SOFTWARE PACKAGE at no additional charge to the LICENSEE as long as the LICENSEE satisfies the terms of this Agreement.
The SOFTWARE PACKAGE may only be used with the databases provided by LICENSOR and/or updated through the SOFTWARE PACKAGE (whether automatically or manually) ("DATABASES"), and such DATABASES may only be used with the SOFTWARE PACKAGE with which such DATABASES are associated. LICENSEE may only use the DATABASES in the form which LICENSOR provides and LICENSEE may not update, modify, delete, add to, excerpt or disclose the contents of such DATABASES except through the SOFTWARE PACKAGE, or as otherwise instructed by LICENSOR.
Ownership and title of the SOFTWARE PACKAGE license key(s) is retained by LICENSOR. LICENSEE may not sell, transfer, publish, distribute, or otherwise give third parties SOFTWARE PACKAGE license key(s). LICENSOR, upon LICENSOR’s sole discretion, reserves the right to require the usage by LICENSEE of new license key(s) provided by the LICENSOR or, upon noncompliance with this license agreement, to terminate license key(s).
Without the LICENSOR's prior written consent, LICENSEE may not, and may not permit others to: (1) Modify or create any derivative works of the SOFTWARE PACKAGE or its components; (2) Decompile, disassemble, reverse engineer, reduce the SOFTWARE PACKAGE to perceptible form, or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the SOFTWARE PACKAGE (except to the extent applicable laws specifically prohibit such restriction); (3) Sell, distribute or otherwise make available the SOFTWARE PACKAGE or components thereof, or this license, in any way; (4) Repackage or bundle the SOFTWARE PACKAGE with other software: or (5) Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the SOFTWARE PACKAGE.
LICENSEE further agrees to allow the LICENSOR or LICENSOR’s agent to enter LICENSEE’S place of business during regular business hours at times selected by LICENSOR or LICENSOR’s agent to verify compliance with the provisions of this Agreement
2. Disclaimer of Warranties and Limitations of Liability:
EXCEPT AS PROVIDED ABOVE, NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, IS MADE BY EITHER PARTY HEREUNDER, AND THERE IS EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ALL WARRANTIES THAT THE SOFTWARE PACKAGE IS FREE OF DEFECTS, ABLE TO OPERATE ON AN UNINTERRUPTED OR ERROR-FREE BASIS, OR NON-INFRINGING. NEITHER LICENSOR NOR ANY AUTHORIZED INDIVIDUAL OR ANY AUTHORIZED PARTY RESELLING, SERVICING OR DISTRIBUTING THE SOFTWARE PACKAGE, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES (EACH AN "INDEMNIFIED PARTY"), SHALL BE LIABLE TO LICENSEE UNDER ANY CIRCUMSTANCES FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES INCLUDING WITHOUT LIMITATION DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE PACKAGE AND ANY MALFUNCTIONS, FROM OR RELATED TO USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE PACKAGE, FROM INABILITY TO USE THE SOFTWARE PACKAGE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE PACKAGE, FROM DELAYS, LOSS OF DATA, LOSS OF PROFIT, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS, ECONOMIC LOSS, LOSS OF BUSINESS OPPORTUNITY, OR LOSS OF BUSINESS REVENUE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF LICENSOR AND/OR A PARTY RELATED TO LICENSOR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) AND NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
The conditions of your use of the SOFTWARE PACKAGE, including but not limited to variables of operating system and application configuration, as well as the ways in which remote third party resources may load, display or retrieve information to or from your computer, are beyond LICENSOR's control. Through the use of the SOFTWARE PACKAGE you are changing important information and files on your computer(s) (including without limitation registry settings), as well as changing the way those files, and your computer(s), interact, retrieve, load or display information, either on the computer or remotely. You download and use the SOFTWARE PACKAGE at your own discretion and risk and are solely responsible for your own use of the SOFTWARE PACKAGE. You understand and agree that you are solely responsible for any damages to your computer system(s) or loss of data that results from the download or use of the SOFTWARE PACKAGE. You acknowledge that your use of the SOFTWARE PACKAGE may disable third party applications and functionality, some of which you may be required to use in order to continue to be eligible to use third party services or software. You must verify for yourself whether a specific use of the SOFTWARE PACKAGE will leave you in breach of your obligations to third parties and LICENSOR shall not be liable for any claim or action arising out of such breach. All information is given without warranty or guarantee. Except as expressly set forth otherwise herein, you assume and hereby expressly release LICENSOR and any authorized individual or any authorized party reselling, servicing or distributing the Software Package from all liability, in tort, contract or otherwise, incurred in connection with the use of LICENSOR's products, technical assistance and information.
LICENSOR does not assume liability for errors, malfunctions, defects, or omissions in the SOFTWARE PACKAGE. LICENSEE’S sole remedy for said errors, malfunctions, defects, or omissions in the SOFTWARE PACKAGE is limited to LICENSOR’S efforts to correct said errors, malfunctions, defects, or omissions by support service or through upgrades and/or enhancements to the SOFTWARE PACKAGE; provided, however that LICENSEE acknowledges that LICENSOR does not guarantee either the timeliness or even the availability of any such correction.
The parties hereto acknowledge and agree that individuals or parties who are authorized by LICENSOR to resell, distribute, install or support the SOFTWARE PACKAGE and each of their successors and assigns are third party beneficiaries of the provisions of limitation of liability provisions of this Agreement, and that such provisions shall inure to the benefit of and be enforceable by individuals or parties reselling,distributing, installing or supporting the SOFTWARE PACKAGE and their successors and assigns.
Nothing in this Agreement shall be construed as: (i) a warranty or representation by LICENSOR as to the validity, enforceability or scope of any LICENSOR intellectual property; (ii) a warranty or representation that anything made, distributed, used, sold, or otherwise disposed of pursuant to this Agreement is or will be free from infringement of patents or other intangible rights of third parties; (iii) a requirement that LICENSOR shall file any patent application, trademark application, copyright application, secure any patent, trademark or copyright or maintain any patent, trademark or copyright in force; (iv) an obligation on LICENSOR to bring or prosecute actions or suits against third parties for infringement of the LICENSOR Intellectual Property; (v) an obligation to furnish any manufacturing or technical information except as specifically provided herein; or (vi) granting by implication, estoppel, or otherwise, any licensed rights under patents, trademarks, trade secrets, know-how, copyrights, or other intangible rights of LICENSOR other than the granted rights under the SOFTWARE PACKAGE as defined herein.
THIS DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITIES CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE PACKAGE IS AUTHORIZED HEREUNDER EXCEPT UNDER THESE DISCLAIMERS AND LIMITATIONS.
3. Third Party Software:
Certain LICENSOR SOFTWARE PACKAGES are designed to be executed in conjunction with third party software which is not owned by or affiliated with LICENSOR. Details on third party software requirements and/or incompatibility, if any, may be found on the www.brightfort.com website. LICENSEE shall be responsible, at its sole cost and expense, for obtaining, installing and using the appropriate third party licenses and maintenance as needed to operate the SOFTWARE PACKAGE.
4. Proprietary Property:
You acknowledge that the SOFTWARE PACKAGE constitutes valuable proprietary assets and trade secrets of LICENSOR and that any additional information, written materials, documents, flow charts, logic diagrams, source code, test materials, and the like relating in any way to the SOFTWARE PACKAGE are also proprietary to LICENSOR whether disclosed in the course of problem resolution or otherwise. LICENSOR and its affiliates hold and shall hold sole and exclusive ownership of all right, title, and interest in any patent, trademark, or copyright secured for the SOFTWARE PACKAGE, subject only to the rights and privileges expressly granted to the you in this Agreement. You agree to use the SOFTWARE PACKAGE only as provided in this Agreement. You agree to hold confidential and not to provide or otherwise make available information, written materials, documents, flow charts, logic diagrams, source code, test materials, and the like relating to the SOFTWARE PACKAGE in any form, to any person other than LICENSEE'S or LICENSOR'S employees without prior written consent from LICENSOR. You further agree to protect the SOFTWARE PACKAGE and any additional information, written materials, flow charts, logic diagrams, source code, test materials, and the like relating in any way to the SOFTWARE PACKAGE from unauthorized disclosure by your agents, employees, or customers, if any.
5. Limited Permission to Copy:
LICENSEE may not copy or otherwise reproduce the SOFTWARE PACKAGE in whole or in part; provided, however:
You may install and use the SOFTWARE PACKAGE via your network on up to but no more than the number of computers (seats) specified at the time of payment. Neither LICENSEE nor its agents, employees, representatives are permitted to copy the SOFTWARE PACKAGE to any other computer other than the number of computers specified at time of payment, said computer(s) located at LICENSEE’S place of business and subject to this Agreement.
You may make copies of the SOFTWARE PACKAGE for backup purposes, IF AND ONLY IF ALL FILES REMAIN UNCHANGED AND INTACT, AND NO FILES ARE ADDED. Any copies or partial copies of the SOFTWARE PACKAGE shall remain the property of LICENSOR.
6. Indemnification:
LICENSEE agrees to indemnify and hold harmless LICENSOR, any authorized individual or any authorized party reselling, distributing, installing or supporting the Software Package, and their respective directors, officers, agents and employees, for all claims relating to the SOFTWARE PACKAGE, including, but not limited to LICENSOR technical support or updates or enhancements to the SOFTWARE PACKAGE, including causes of action sounding in contract, tort, or strict liability, brought against the LICENSOR by virtue of LICENSOR’S supplying the SOFTWARE PACKAGE to the LICENSEE. LICENSEE further agrees to pay reasonable attorney’s fees incurred by LICENSOR in defending such claims or causes of action.
7. Audit Rights.
LICENSEE shall keep good and accurate records sufficient to permit determination by LICENSOR of the location and custodian of all copies of the SOFTWARE PACKAGE, data files and documentation and the number of users. Duplicate copies of such records must be made available to LICENSOR upon the request of LICENSOR, however such requests shall be no more frequent than twice each calendar year during the term hereof and once within six months after termination of this Agreement. LICENSOR's failure to request shall not constitute a waiver of LICENSOR's right to object to the accuracy of the reports rendered or payments made under this Agreement.
8. Support:
Only online support (via support ticket) is offered by LICENSOR, with no guarantee of promptness or that the issue will be resolved to the satisfaction of LICENSEE. LICENSOR’S limited support obligations cover only the most current version of the Software Package and LICENSEE expressly acknowledges that older versions of the Software Package are not supported by LICENSOR and may have reduced functionality upon the release of a new version of the Software Package. LICENSOR’S support site for this purpose is http://www.spywareblasternv.net/support/
LICENSEE is solely responsible for the training of LICENSEE's employees in the use of the SOFTWARE PACKAGE.
The cumulative liability of LICENSOR to LICENSEE for all claims relating to the SOFTWARE PACKAGE, including, but not limited to LICENSOR technical support or updates or enhancements to the SOFTWARE PACKAGE, under this Agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of payments paid to LICENSOR by LICENSEE during the preceding 12 months under this Agreement. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
9. Publicity.
Neither party shall issue a press release or otherwise disclose the existence or subject matter of this Agreement without the express prior written consent of the other party, such approval not to be reasonably withheld. However, LICENSEE specifically agrees that LICENSOR may identify LICENSEE as a licensee of the SOFTWARE PACKAGE.
10. Miscellaneous:
This Agreement shall be governed pursuant to the laws of the Commonwealth of Pennsylvania and any dispute in connection with this Agreement shall be resolved in the State or Federal Courts of the Commonwealth of Pennsylvania, each party submitting to the jurisdiction and venue of such court. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The failure of LICENSOR to enforce, in any one or more instances, any of the terms and conditions of the Agreement, shall not be construed as a waiver of the future performance of any such term or condition.
11. U.S. Government Restricted Rights.
The SOFTWARE PACKAGE and related 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)(I)(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. Contractor/manufacturer is BrightFort LLC, contact information available on the Contact page of www.brightfort.com.
YOU ARE ADVISED TO PRINT OUT A COPY OF THIS LEGAL AGREEMENT FOR YOUR OWN RECORDS.
You are purchasing a license for SpywareBlaster® Network Version (along with the other items noted below, the "SOFTWARE PACKAGE"). The SOFTWARE PACKAGE includes the SpywareBlaster Network Version application, associated documentation and an associated database. Purchase, installation and use of the SOFTWARE PACKAGE is expressly made subject to your acceptance of the terms and conditions set forth below.
SOFTWARE PACKAGE Terms and Conditions
Please read this document carefully. This is the Software Licensing Agreement (the "Agreement") pursuant to which you (meaning you and your company, organization, or employer, the “LICENSEE”) may download, install and use the software, associated documentation and associated database files identified above (the "SOFTWARE PACKAGE"). Unless otherwise specified, "you" shall mean you and your company, organization or employer. Installation and use of the SOFTWARE PACKAGE is absolutely conditioned upon your acceptance and assent to the terms and conditions contained herein. This offer expressly limits acceptance to the terms stated herein which cannot be waived, varied, modified or amended in any manner except in writing by BrightFort LLC (the “LICENSOR”). LICENSOR expressly objects to and rejects any additional or different terms in any response to this offer. Upon LICENSEE's acceptance, the terms and conditions stated in this offer shall become the agreement of the parties for the matters state herein. Any portion deemed invalid or unenforceable shall be struck and the remainder of this Agreement shall continue to be effective and binding.
IF YOU CANNOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT PROCEED WITH PURCHASE, INSTALLATION AND/OR USE OF THE SOFTWARE PACKAGE.
SOFTWARE PACKAGE License
Licenses to use the SOFTWARE PACKAGE for any LICENSEE require the payment of associated non-refundable fees. Use of the SOFTWARE PACKAGE without an appropriate license is prohibited.
Subject to all the provisions and conditions of this Agreement, LICENSOR hereby grants and LICENSEE hereby accepts a non-exclusive, non-transferable, annual and renewable right and license to install and use the SOFTWARE PACKAGE on up to but no more than the number of computers (seats) specified by the LICENSEE at the time of payment, such computers to be based at LICENSEE’S place of business. Licenses are not automatically renewed and are instead subject to annual renewal which must be initiated by the LICENSEE .
1. General License Terms and Conditions:
By installing and using the SOFTWARE PACKAGE and/or each time you agree to be bound by the terms and conditions of this Agreement, you are stating to LICENSOR that you personally are at least 18 years of age and: (i) are either acting on your own behalf as an individual or (ii) have been authorized by your employer or principal to enter into this Agreement as binding on your employer or principal and all end-users for such LICENSEE entity.
LICENSEE shall use the SOFTWARE PACKAGE only at LICENSEE’S place(s) of business and shall not allow access to, or use of, the SOFTWARE PACKAGE through any computers based outside of LICENSEE’S place(s) of business. Laptops, tablets and other portable computers running compatible operating systems may be included only where such laptops are provided by LICENSEE to its employees or consultants; are expressly provided solely for, or primarily for, business purposes and where such laptops are routinely and regularly logged into LICENSEE's local or wide area network. LICENSEE shall use the SOFTWARE PACKAGE solely for LICENSEE's internal use and shall not allow access by or the use of the SOFTWARE PACKAGE for the benefit, direct or indirect, of any parent, subsidiary, affiliated entities, or third parties, including without limitation any assignment, sublicense, rental, lease, or use in a service bureau capacity. LICENSEE shall not (a) evaluate or use the SOFTWARE PACKAGE for the purpose of competing with LICENSOR in any manner; or (b) facilitate the evaluation or use of the SOFTWARE PACKAGE for the purpose of competing with LICENSOR in any manner. LICENSEE may not assign either this Agreement or the license granted herein. The SOFTWARE PACKAGE may not be disclosed, sublicensed, published, released, or transferred to another party by LICENSEE, without the prior written consent of LICENSOR. No transfer of ownership is intended by this Agreement. All rights not expressly granted to LICENSEE in this Agreement are reserved by LICENSOR.
This Agreement shall have an initial term of one year, extending from date of receipt of payment from LICENSEE. This annual term shall be renewable for subsequent one year periods only upon acceptance of the latest license for the SOFTWARE PACKAGE, and upon payment of the non-refundable annual license fee appropriately calculated according to the then-current usage by LICENSEE, taking into account LICENSEE's growth projections for the upcoming year. LICENSOR reserves the right to terminate or suspend part or all of the rights and licenses granted herein (including without limitation, software license rights as well as rights to future versions or other upgrades) for any violation of the terms and conditions set forth herein which remains uncured for a period of thirty (30) days after LICENSOR issues written notice of such violation, including, without limitation any default or withdrawal of payment. LICENSEE agrees to pay all applicable costs and attorney's fees, if permitted by law, for the collection of payments and other charges due under this Agreement.
Within thirty (30) days after cancellation, whether for default of any provision of this Agreement or for lack of license renewal, LICENSEE shall uninstall the SOFTWARE PACKAGE as instructed and also delete and/or destroy any and all portions of the SOFTWARE PACKAGE and any additional information, written documents, flow charts, logic diagrams, source code, test materials, and the like, relating to the SOFTWARE PACKAGE and all copies thereof in whatever form, including partial copies, which may have been made by LICENSEE. Upon LICENSOR's written request, LICENSEE shall provide a signed officer's certification of LICENSEE's compliance with the terms of this paragraph.
LICENSOR shall provide any and all updates and enhancements to the SOFTWARE PACKAGE at no additional charge to the LICENSEE as long as the LICENSEE satisfies the terms of this Agreement.
The SOFTWARE PACKAGE may only be used with the databases provided by LICENSOR and/or updated through the SOFTWARE PACKAGE (whether automatically or manually) ("DATABASES"), and such DATABASES may only be used with the SOFTWARE PACKAGE with which such DATABASES are associated. LICENSEE may only use the DATABASES in the form which LICENSOR provides and LICENSEE may not update, modify, delete, add to, excerpt or disclose the contents of such DATABASES except through the SOFTWARE PACKAGE, or as otherwise instructed by LICENSOR.
Ownership and title of the SOFTWARE PACKAGE license key(s) is retained by LICENSOR. LICENSEE may not sell, transfer, publish, distribute, or otherwise give third parties SOFTWARE PACKAGE license key(s). LICENSOR, upon LICENSOR’s sole discretion, reserves the right to require the usage by LICENSEE of new license key(s) provided by the LICENSOR or, upon noncompliance with this license agreement, to terminate license key(s).
Without the LICENSOR's prior written consent, LICENSEE may not, and may not permit others to: (1) Modify or create any derivative works of the SOFTWARE PACKAGE or its components; (2) Decompile, disassemble, reverse engineer, reduce the SOFTWARE PACKAGE to perceptible form, or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the SOFTWARE PACKAGE (except to the extent applicable laws specifically prohibit such restriction); (3) Sell, distribute or otherwise make available the SOFTWARE PACKAGE or components thereof, or this license, in any way; (4) Repackage or bundle the SOFTWARE PACKAGE with other software: or (5) Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the SOFTWARE PACKAGE.
LICENSEE further agrees to allow the LICENSOR or LICENSOR’s agent to enter LICENSEE’S place of business during regular business hours at times selected by LICENSOR or LICENSOR’s agent to verify compliance with the provisions of this Agreement
2. Disclaimer of Warranties and Limitations of Liability:
EXCEPT AS PROVIDED ABOVE, NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, IS MADE BY EITHER PARTY HEREUNDER, AND THERE IS EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ALL WARRANTIES THAT THE SOFTWARE PACKAGE IS FREE OF DEFECTS, ABLE TO OPERATE ON AN UNINTERRUPTED OR ERROR-FREE BASIS, OR NON-INFRINGING. NEITHER LICENSOR NOR ANY AUTHORIZED INDIVIDUAL OR ANY AUTHORIZED PARTY RESELLING, SERVICING OR DISTRIBUTING THE SOFTWARE PACKAGE, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES (EACH AN "INDEMNIFIED PARTY"), SHALL BE LIABLE TO LICENSEE UNDER ANY CIRCUMSTANCES FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES INCLUDING WITHOUT LIMITATION DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE PACKAGE AND ANY MALFUNCTIONS, FROM OR RELATED TO USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE PACKAGE, FROM INABILITY TO USE THE SOFTWARE PACKAGE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE PACKAGE, FROM DELAYS, LOSS OF DATA, LOSS OF PROFIT, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS, ECONOMIC LOSS, LOSS OF BUSINESS OPPORTUNITY, OR LOSS OF BUSINESS REVENUE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF LICENSOR AND/OR A PARTY RELATED TO LICENSOR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) AND NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
The conditions of your use of the SOFTWARE PACKAGE, including but not limited to variables of operating system and application configuration, as well as the ways in which remote third party resources may load, display or retrieve information to or from your computer, are beyond LICENSOR's control. Through the use of the SOFTWARE PACKAGE you are changing important information and files on your computer(s) (including without limitation registry settings), as well as changing the way those files, and your computer(s), interact, retrieve, load or display information, either on the computer or remotely. You download and use the SOFTWARE PACKAGE at your own discretion and risk and are solely responsible for your own use of the SOFTWARE PACKAGE. You understand and agree that you are solely responsible for any damages to your computer system(s) or loss of data that results from the download or use of the SOFTWARE PACKAGE. You acknowledge that your use of the SOFTWARE PACKAGE may disable third party applications and functionality, some of which you may be required to use in order to continue to be eligible to use third party services or software. You must verify for yourself whether a specific use of the SOFTWARE PACKAGE will leave you in breach of your obligations to third parties and LICENSOR shall not be liable for any claim or action arising out of such breach. All information is given without warranty or guarantee. Except as expressly set forth otherwise herein, you assume and hereby expressly release LICENSOR and any authorized individual or any authorized party reselling, servicing or distributing the Software Package from all liability, in tort, contract or otherwise, incurred in connection with the use of LICENSOR's products, technical assistance and information.
LICENSOR does not assume liability for errors, malfunctions, defects, or omissions in the SOFTWARE PACKAGE. LICENSEE’S sole remedy for said errors, malfunctions, defects, or omissions in the SOFTWARE PACKAGE is limited to LICENSOR’S efforts to correct said errors, malfunctions, defects, or omissions by support service or through upgrades and/or enhancements to the SOFTWARE PACKAGE; provided, however that LICENSEE acknowledges that LICENSOR does not guarantee either the timeliness or even the availability of any such correction.
The parties hereto acknowledge and agree that individuals or parties who are authorized by LICENSOR to resell, distribute, install or support the SOFTWARE PACKAGE and each of their successors and assigns are third party beneficiaries of the provisions of limitation of liability provisions of this Agreement, and that such provisions shall inure to the benefit of and be enforceable by individuals or parties reselling,distributing, installing or supporting the SOFTWARE PACKAGE and their successors and assigns.
Nothing in this Agreement shall be construed as: (i) a warranty or representation by LICENSOR as to the validity, enforceability or scope of any LICENSOR intellectual property; (ii) a warranty or representation that anything made, distributed, used, sold, or otherwise disposed of pursuant to this Agreement is or will be free from infringement of patents or other intangible rights of third parties; (iii) a requirement that LICENSOR shall file any patent application, trademark application, copyright application, secure any patent, trademark or copyright or maintain any patent, trademark or copyright in force; (iv) an obligation on LICENSOR to bring or prosecute actions or suits against third parties for infringement of the LICENSOR Intellectual Property; (v) an obligation to furnish any manufacturing or technical information except as specifically provided herein; or (vi) granting by implication, estoppel, or otherwise, any licensed rights under patents, trademarks, trade secrets, know-how, copyrights, or other intangible rights of LICENSOR other than the granted rights under the SOFTWARE PACKAGE as defined herein.
THIS DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITIES CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE PACKAGE IS AUTHORIZED HEREUNDER EXCEPT UNDER THESE DISCLAIMERS AND LIMITATIONS.
3. Third Party Software:
Certain LICENSOR SOFTWARE PACKAGES are designed to be executed in conjunction with third party software which is not owned by or affiliated with LICENSOR. Details on third party software requirements and/or incompatibility, if any, may be found on the www.brightfort.com website. LICENSEE shall be responsible, at its sole cost and expense, for obtaining, installing and using the appropriate third party licenses and maintenance as needed to operate the SOFTWARE PACKAGE.
4. Proprietary Property:
You acknowledge that the SOFTWARE PACKAGE constitutes valuable proprietary assets and trade secrets of LICENSOR and that any additional information, written materials, documents, flow charts, logic diagrams, source code, test materials, and the like relating in any way to the SOFTWARE PACKAGE are also proprietary to LICENSOR whether disclosed in the course of problem resolution or otherwise. LICENSOR and its affiliates hold and shall hold sole and exclusive ownership of all right, title, and interest in any patent, trademark, or copyright secured for the SOFTWARE PACKAGE, subject only to the rights and privileges expressly granted to the you in this Agreement. You agree to use the SOFTWARE PACKAGE only as provided in this Agreement. You agree to hold confidential and not to provide or otherwise make available information, written materials, documents, flow charts, logic diagrams, source code, test materials, and the like relating to the SOFTWARE PACKAGE in any form, to any person other than LICENSEE'S or LICENSOR'S employees without prior written consent from LICENSOR. You further agree to protect the SOFTWARE PACKAGE and any additional information, written materials, flow charts, logic diagrams, source code, test materials, and the like relating in any way to the SOFTWARE PACKAGE from unauthorized disclosure by your agents, employees, or customers, if any.
5. Limited Permission to Copy:
LICENSEE may not copy or otherwise reproduce the SOFTWARE PACKAGE in whole or in part; provided, however:
You may install and use the SOFTWARE PACKAGE via your network on up to but no more than the number of computers (seats) specified at the time of payment. Neither LICENSEE nor its agents, employees, representatives are permitted to copy the SOFTWARE PACKAGE to any other computer other than the number of computers specified at time of payment, said computer(s) located at LICENSEE’S place of business and subject to this Agreement.
You may make copies of the SOFTWARE PACKAGE for backup purposes, IF AND ONLY IF ALL FILES REMAIN UNCHANGED AND INTACT, AND NO FILES ARE ADDED. Any copies or partial copies of the SOFTWARE PACKAGE shall remain the property of LICENSOR.
6. Indemnification:
LICENSEE agrees to indemnify and hold harmless LICENSOR, any authorized individual or any authorized party reselling, distributing, installing or supporting the Software Package, and their respective directors, officers, agents and employees, for all claims relating to the SOFTWARE PACKAGE, including, but not limited to LICENSOR technical support or updates or enhancements to the SOFTWARE PACKAGE, including causes of action sounding in contract, tort, or strict liability, brought against the LICENSOR by virtue of LICENSOR’S supplying the SOFTWARE PACKAGE to the LICENSEE. LICENSEE further agrees to pay reasonable attorney’s fees incurred by LICENSOR in defending such claims or causes of action.
7. Audit Rights.
LICENSEE shall keep good and accurate records sufficient to permit determination by LICENSOR of the location and custodian of all copies of the SOFTWARE PACKAGE, data files and documentation and the number of users. Duplicate copies of such records must be made available to LICENSOR upon the request of LICENSOR, however such requests shall be no more frequent than twice each calendar year during the term hereof and once within six months after termination of this Agreement. LICENSOR's failure to request shall not constitute a waiver of LICENSOR's right to object to the accuracy of the reports rendered or payments made under this Agreement.
8. Support:
Only online support (via support ticket) is offered by LICENSOR, with no guarantee of promptness or that the issue will be resolved to the satisfaction of LICENSEE. LICENSOR’S limited support obligations cover only the most current version of the Software Package and LICENSEE expressly acknowledges that older versions of the Software Package are not supported by LICENSOR and may have reduced functionality upon the release of a new version of the Software Package. LICENSOR’S support site for this purpose is http://www.spywareblasternv.net/support/
LICENSEE is solely responsible for the training of LICENSEE's employees in the use of the SOFTWARE PACKAGE.
The cumulative liability of LICENSOR to LICENSEE for all claims relating to the SOFTWARE PACKAGE, including, but not limited to LICENSOR technical support or updates or enhancements to the SOFTWARE PACKAGE, under this Agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of payments paid to LICENSOR by LICENSEE during the preceding 12 months under this Agreement. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
9. Publicity.
Neither party shall issue a press release or otherwise disclose the existence or subject matter of this Agreement without the express prior written consent of the other party, such approval not to be reasonably withheld. However, LICENSEE specifically agrees that LICENSOR may identify LICENSEE as a licensee of the SOFTWARE PACKAGE.
10. Miscellaneous:
This Agreement shall be governed pursuant to the laws of the Commonwealth of Pennsylvania and any dispute in connection with this Agreement shall be resolved in the State or Federal Courts of the Commonwealth of Pennsylvania, each party submitting to the jurisdiction and venue of such court. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The failure of LICENSOR to enforce, in any one or more instances, any of the terms and conditions of the Agreement, shall not be construed as a waiver of the future performance of any such term or condition.
11. U.S. Government Restricted Rights.
The SOFTWARE PACKAGE and related 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)(I)(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. Contractor/manufacturer is BrightFort LLC, contact information available on the Contact page of www.brightfort.com.
YOU ARE ADVISED TO PRINT OUT A COPY OF THIS LEGAL AGREEMENT FOR YOUR OWN RECORDS.