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End User License Agreement
Printable version.
SOFTWARE LICENSE AGREEMENT In consideration for your use of the software and any updates, customizations and/or enhancements, entitled BigEars ("Software") provided by Flat 5 Software ("Licensor"), you ("User") agree to the following terms and conditions. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT YOU MAY NOT INSTALL OR USE THE SOFTWARE. 1.License. Licensor hereby grants the User a non-exclusive, non-transferable license to use the Software for personal use on one computer. Licensor reserves the right at any time, without liability or prior notice, to change the features or characteristics of the Software, this Agreement, or the Software's documentation and related materials. 2.License Restrictions. a. User acknowledges that the Software and its structure, organization, and source code constitute valuable trade secrets of Licensor. Accordingly, User agrees not to (i) copy, perform, distribute, modify, adapt, alter, translate, or create derivative works from the Software; (ii) merge the Software with other software; (iii) sublicense, lease, rent, or loan the Software to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; or (v) otherwise use the Software except as expressly allowed in this Agreement. b. User shall comply with all applicable export and import control laws and regulations in its use of the Software and, in particular, User shall not export or re-export the Software without all required United States and foreign government licenses. User understands that access and use of the Software from outside the United States may constitute export of technology and technical data which may implicate export regulations and/or require export license. c. Licensor retains exclusive ownership of all worldwide copyrights, trade marks, service marks, trade secrets, patent rights, moral rights, property rights and all other industrial rights in the Software and documentation, including any derivative works, modification, updates, or enhancements. All rights in and to the Software not expressly granted to User in this Agreement are reserved by Licensor. Nothing in this Agreement shall be deemed to grant, by implication, estoppel or otherwise, a license under any of Licensor's existing or future patents. d. If User is an employee, contractor or agent of the United States Government, the following provision applies. The Software and documentation are comprised of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995). Unpublished rights reserved under the copyright laws of the United States. e. User shall not use the Software in any way that violates any local, state, federal or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other computer crime regulations, etc. Licensor does not monitor or edit any transmissions, postings, routings or other materials which User may send, post, route, transmit or otherwise move through or with the Software. 3.WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FUNCTIONALITY OR ITS BEING VIRUS FREE. USER RECOGNIZES THAT THE AS IS CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH LICENSOR WOULD NOT HAVE AGREED TO ENTER THIS AGREEMENT. LICENSOR AND THIRD PARTIES DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING THE SOFTWARE SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF THIRD PARTIES WHATSOEVER. USER ACKNOWLEDGES THAT HE OR SHE HAS RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET FORTH HEREIN. 4.LIMITATION OF LIABILITY. LICENSOR SHALL NOT BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF GOODWILL, OR THE LOSS OF USE OF ANY DATA, EVEN IF LICENSOR HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. UNDER NO CIRCUMSTANCES SHALL LICENSOR'S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY USER UNDER THIS AGREEMENT. USER ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. 5.Indemnification. User shall defend, indemnify and hold harmless Licensor, its officers, directors contractors, agents and employees, from any and all claims or causes of action arising out of use of or related to the Software, and pay any and all damages and expenses (including but not limited to attorneys fees incurred by Licensor and/or third parties) in connection therewith. Licensor reserves the right, at it own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User shall cooperate with the Licensor in asserting any available defenses. 6.Termination. This Agreement is effective unless terminated by Licensor at any time for any breach of this Agreement. User may terminate this Agreement at any time by destroying all copies of the Software in User's possession and deleting the Software from User's computer system and other storage media, or by returning all such copies to Licensor. This Agreement and User's right to use this Software automatically terminate if User breaches this Agreement. 7.Legal Compliance. Licensor may suspend or terminate use of Software and this Agreement immediately upon receipt of any notice which alleges that User has used the Software for any purpose that violates any local, state, federal or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other criminal regulations, etc. of its agents, officers, directors, contractors or employees. In such event, Licensor may disclose the User's identity and contact information, if requested by a government or law enforcement body, or as a result of a subpoena or other legal action, and Licensor shall not be liable for damages or results thereof and User agrees not to bring any action or claim against this Licensor for such disclosure. 8.Miscellaneous. This Agreement and any dispute arising hereunder shall be construed in accordance with the laws of the State of California without regard to principles of conflict of laws. For the purpose of this Agreement, User consents to the personal jurisdiction and venue of the state and federal courts located in the County of Sacramento or the United States District Court for the Northern District of California. If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected, and this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended to so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute the same instrument. Any waiver of a provision of this Agreement must be in writing and signed by the party to be charged. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement. This Agreement constitutes the entire agreement between the parties related to the subject matter hereof, supersedes any prior or contemporaneous agreement between the parties relating to the Software and shall not be changed except by written agreement signed by an officer of Licensor.