SOFTWARE LICENSE AGREEMENT
PRODUCT: WebWatchBot - All Versions
REVISED: 9 August 2012
This Software License Agreement (“Agreement”) is a legal agreement by and between ExclamationSoft a Pennsylvania corporation (“ExclamationSoft”), with a principal place of business located at 196 West Ashland Street, Suite 309, Doylestown, PA 18901 and the license holder (“licensee”)
ExclamationSoft software products include computer software, associated media and printed materials, and may include online electronic documentation (the “Software”). By installing, copying or otherwise using the Software, Licensee agrees to be bound by the terms and conditions of this License. If you do not agree to the terms of this License, promptly remove or destroy all versions of the Software from your systems and storage devices and return any media and printed materials for a full refund within 7 days.
In consideration of payment of the applicable License fee, ExclamationSoft grants Licensee a non-exclusive, non-transferable, enterprise-wide, worldwide license, without right of sublicense. The Software is licensed (not sold) to Licensee and ExclamationSoft does not transfer title of the Software to Licensee. Licensee has no rights with respect to the Software other than those rights expressly stated in this License.
This License grants Licensee the following rights:
Single Computer License - One (1) licensed copy may be activated and used on one and only one computer.
Network License - The Software may be accessed through a network, provided that Licensee has obtained an individual license (Remote Client License) for the Software for each workstation having access to the software through the network. For example, if five (5) different workstations will access the Software on the network, Licensee must have five (5) Remote Client Licenses, regardless of the number of concurrent users.
1. Use of Software - The Software may only be used for lawful purposes. Any transmission or retransmission of material using the Software in violation of any Federal or State law, including those related to copyright, libel, slander, obscenity or trade secrets, is expressly prohibited. Licensee is expressly prohibited from using the Software to (a) monitor any site, URL, domain or IP address without the express permission of the site or (b) cause or initiate “denial of service” attacks or otherwise interrupt the operations of any site, URL, domain or IP address.
2. Copies - Licensee may either (a) make one copy of the Software solely for backup, disaster recovery, disaster recovery testing, or archival purposes, or (b) install the Software on a single computer provided Licensee keeps the original solely for backup, disaster recovery, disaster recovery testing, or archival purposes. Licensee may not copy the printed materials accompanying the Software, if provided.
3. Reverse Engineering and Similar Efforts – Licensee may not reverse engineer, decompile or disassemble, or otherwise prepare any derivative works of the Software. The software is licensed as a single product and the component parts of the software may not be separated for use independent of one another.
4. Distribution - Licensee may not rent, lease, sell or otherwise distribute the Software or any derivative works based on the Software in whole or in part.
5. Transfer – Licensee may permanently transfer all of its rights under this License, provided no copies are retained, all of the Software (including all component parts, upgrades, printed materials and this License) is transferred and the transferee agrees to the terms of this License.
PROPRIETARY RIGHTS AND COPYRIGHT
All right, title, interest and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text, and "applets," incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by ExclamationSoft or its suppliers. The Software is protected by copyright laws and international treaty provisions. Licensee shall treat the Software like any other copyrighted material.
ExclamationSoft represents and warrants that: (a) it owns or has license rights in and to the Software; (b) it has the right to grant the License as set out in this Agreement; (c) the License does not conflict with any other agreement to which ExclamationSoft is a party; (d) the Software does not infringe any valid rights of any third-party; (e) upon installation, the Software will be free of material defects and shall function properly and perform in conformity with published documentation and specifications; (f) the Software and the medium on which it is originally provided to Licensee is free from any virus at the time of delivery; and (g) the Software Product Maintenance will be provided with reasonable skill and care conforming to generally accepted software industry standards.
DISCLAIMER OF WARRANTY
THE SOFTWARE AND THE ACCOMPANYING FILES ARE SOLD "AS IS" AND WITHOUT WARRANTIES AS TO PERFORMANCE OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ANY OTHER WARRANTIES WHETHER EXPRESSED OR IMPLIED. GOOD DATA PROCESSING PROCEDURE DICTATES THAT ANY PROGRAM BE THOROUGHLY TESTED WITH NON-CRITICAL DATA BEFORE RELYING ON IT. LICENSEE ASSUMES THE ENTIRE RISK OF USING THE SOFTWARE.
LIMITATION OF LIABILITY
EXCLAMATIONSOFT’S ENTIRE LIABILITY TO LICENSEE AND LICENSEE’S SOLE REMEDY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, OR STRICT LIABILITY, SHALL BE LIMITED TO PRODUCT REPLACEMENT OR THE AMOUNT OF THE LICENSE FEE PAID TO EXCLAMATIONSOFT BY LICENSEE FOR THE SOFTWARE THAT CAUSED THE DAMAGES OR IS THE SUBJECT MATTER OF OR IS DIRECTLY RELATED TO THE CAUSE OF ACTION. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING ANY WAY OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
EXCLAMATIONSOFT SHALL NOT BE HELD LIABLE, EITHER IN CONTRACT OR TORT, FOR PROTECTION FROM UNAUTHORIZED ACCESS OF ITS CUSTOMER’S TRANSMISSION FACILITIES OR CUSTOMER OWNED PREMISE EQUIPMENT, OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF A CUSTOMER’S DATA FILES, PROGRAMS, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, EXCEPT IF SUCH ACCESS OCCURS AS A RESULT OF EXCLAMATIONSOFT’S NEGLIGENCE.
Licensee agrees to indemnify and to hold harmless ExclamationSoft, its officers, shareholders, agents and employees, from any and all claims, costs, expenses, judgments, causes of actions, attorneys' fees, litigation and court costs resulting from Licensee’s use of the Software that causes damage to the Licensee or any other party.
ExclamationSoft shall not be in any way responsible for claims or damages caused by Licensee to any other party.
This Agreement will terminate automatically if either party fails to comply with the terms and conditions described herein, provided such non-defaulting party gives seven (7) days’ written notice to the other party and such party fails to remedy the breach. Upon termination, Licensee shall immediately discontinue use of the Software and destroy all copies of the Software. All payments made by Licensee are non-refundable. Notwithstanding termination, the following provisions shall survive: Disclaimer of Warranty, Limitation of Liability and Indemnity. All other rights granted under this License will cease upon termination.
This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Pennsylvania, without reference to conflict of law principles. The federal and state courts within Bucks County, Pennsylvania shall have exclusive jurisdiction to adjudicate any dispute arising out of this License. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts. If any provision of this License is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. Any use of the Software by the U.S. Government is subject to Restricted Rights as provided under the provisions set forth in subdivision (c) (1) (ii) of Clause 252.227-7013 of the Defense Federal Acquisition Regulations Supplement, or the similar acquisition regulations of other applicable U.S. Government organizations. Licensee shall comply with all applicable import and export laws and regulations of the U.S. Government and the government of the country in which Licensee receives delivery of the Software.
VERIFICATION OF ACTIVATION CODE
The Software automatically connects to a web page on ExclamationSoft servers to determine the validity of the activation code, either a DEMO code or registration code. The information sent to ExclamationSoft includes but is not limited to: Licensee’s machine name, Licensee’s IP address, and the activation code entered on the computer where the Software has been installed. Licensee’s machine name and IP address are used to track where the Software is installed to curb and discourage software piracy. This information will not be made public through sale or non-sale and will be considered Confidential Information.
ASA (ANNUAL SUPPORT AGREEMENT)
If an ASA is included or purchased with the license:
The ExclamationSoft ASA (Annual Support Agreement) provides customers two key benefits: 1. One Year Unlimited Email Support, 2. Upgrade Assurance
1. One Year Unlimited Email Support - ExclamationSoft provides
quick and accurate support for WebWatchBot for all of our customers
through our online support system from a staff of knowledgeable professionals. Phone
support is available at a nominal charge of US$100/hour for customers
with a current ASA. Customers without a current ASA, must re-instate their
ASA first. The renewable ExclamationSoft ASA provides customers with a full
year of support. Support is available Monday through Friday 9am-5pm EST (+500
2. Upgrade Assurance - The annual renewable ExclamationSoft ASA provides customers with upgrade assurance, providing all upgrades at no extra charge regardless of the level of upgrade, e.g. v5.0 to v6.0 or v6.1 to v6.2. ExclamationSoft strives to continually improve and enhance our software through regular updates.
3. Terms and Conditions - The term for this Agreement shall be for one (1) year from the date of purchase, unless earlier terminated as set forth herein. No change, modification or waiver of this Agreement shall be valid unless it is in writing and signed by both parties. An ASA can be renewed any time it is current and valid or up to the expiration/anniversary date. An ASA's expiration anniversary date is determined by the date of the initial purchase. For example, if the initial purchase was made on 1/1/2013, the expiration anniversary date is 1/1. Re-instating an expired ASA does not extend the expiration anniversary date. For example, if the initial purchase is 1/1/2013 and the ASA is re-instated on 2/1/2013, the expiration for the renewed ASA is 1/1/2014, not 2/1/2014.