End User License Agreement
Licensor hereby grants the User a limited, non-exclusive, non-sublicensable, non-transferable, and non-assignable license to install, load, store, execute, and use the Software in executable object code form for personal use on one computer User only. User acknowledges and agrees that a valid and current license must be purchased for every copy of Software that is installed, loaded, stored, executed, or used. Licensor reserves the right at any time, without liability or prior notice, to change the features or characteristics of the Software, this Software License Agreement, or the Software documentation and related materials. User's breach of any of the terms or conditions contained within this Software License Agreement will result in the immediate termination of your license to install, load, store, execute, and use the Software.
User acknowledges and agrees that User is prohibited from copying, making derivative works of, modifying, publicly performing, publicly displaying, streaming, exploiting, broadcasting, translating, reverse engineering, decompiling, adapting, distributing, reproducing, republishing, scraping, transmitting, selling, posting, or hacking the Software, in whole or in part, without the prior written consent of Licensor. Not withstanding the foregoing, decompiling the Software is allowed where the law provides you with a non-waivable right to enable interoperability with other software products.
You are permitted to make a single copy of the Software in machine readable and complied form for backup purposes only. To be eligible, any backup copy of the Software must be stored on physical media and must be marked as "backup."
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, sell, or loan the Software to any third party; (iv) reverse engineer, decompile, disassemble, frame, emulate, clone, circumvent, or otherwise attempt to derive the source code of the Software; or (v) otherwise use the Software except as expressly allowed in this Software License Agreement.
b. User acknowledges and agrees that the Software, including but not limited to its source code, and the Documentation are owned by Licensor and are Copyright © 2013 Explore Anywhere Holding Corp. User acknowledges and agrees that all trademarks, trade names, service marks, design marks, and logo marks contained within the Software are the owned or licensed property of Licensor. User is hereby prohibited from using the trademarks, trade names, service marks, design marks, and logo marks of Licensor, or any colorable imitation thereof that is likely to cause confusion, without the prior written consent of Licensor. c. 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 that may implicate export regulations and/or require export license.
d. Licensor retains exclusive ownership of all worldwide copyrights, 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 Software License Agreement are reserved by Licensor. Unless otherwise stated in this Software License Agreement, nothing in this Software License Agreement shall be deemed to grant, by implication, estoppel or otherwise, a license under any of Licensor existing or future intellectual property rights. e. 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.
f. 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.
g. User understands that installing the Software onto a third party's computer without that third party's consent may constitute a violation of civil or criminal law, including but not limited to a violation of the Computer Fraud and Abuse Act codified at 18 U.S.C. § 1030 or the Stored Communications Act codified at 18 U.S.C. § 2701 et seq. User acknowledges and agrees that Licensor will not be held liable for User's violation of any civil or criminal law through User's use of the Software, and User is advised to obtain the express written consent of all third parties before installing the Software on a third party computer. User agrees to hold harmless and indemnify Licensor for any and all claims, demands, causes of action, debts, liabilities, damages, costs, or expenses, including costs and reasonable attorneys' fees, arising out of or in relation to User's installation or use of the Software on a third-party's computer without their written consent or authorization. User's license to install, load, store, execute, or use the Software is expressly made conditional upon User's compliance with this section.
THE SOFTWARE IS PROVIDED AS IS WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FUNCTIONALITY. USER RECOGNIZES THAT THE AS IS CLAUSE OF THIS SOFTWARE LICENSE AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS SOFTWARE LICENSE AGREEMENT, WITHOUT WHICH LICENSOR WOULD NOT HAVE AGREED TO ENTER THIS SOFTWARE LICENSE 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. ANY ATTEMPT BY LICENSOR TO MODIFY THE SOFTWARE WILL NOT BE DEEMED TO BE A WAIVER OF THIS DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY.
Limitation of Liability
LICENSOR SHALL NOT BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION 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. LICENSOR DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR IN, OMISSION OF, INTERRUPTION OF, DELETION OF, DEFECT IN, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, OR ALTERATION OF ANY DATA. USER BEARS THE SOLE RESPONSIBILITY TO PROTECT AND BACKUP USER'S DATA, NETWORK, HARDWARE SYSTEMS, SERVERS, SOFTWARE, COMPUTERS, OPERATING SYSTEMS, AND SECURITY SYSTEMS. UNDER NO CIRCUMSTANCES SHALL LICENSOR AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY USER UNDER THIS SOFTWARE LICENSE AGREEMENT. USER ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS SOFTWARE LICENSE AGREEMENT AND THAT LICENSOR WOULD NOT ENTER INTO THIS SOFTWARE LICENSE AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
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. User agrees that User's obligation to defend, indemnify, and hold harmless Licensor will survive the termination or failure of this Software License Agreement and his or her use of the Software.
This Software License Agreement is effective unless terminated by Licensor at any time for any breach of this Software License Agreement. User may terminate this Software License 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 Software License Agreement and User's right to use this Software automatically terminates if User breaches this Software License Agreement.
Licensor may suspend or terminate use of Software and this Software License Agreement immediately upon receipt of any notice which alleges that User has used the Software for any purpose that violates any local, state, or federal law or the 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, or that may violate hacking or other criminal regulations. 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 connected therewith. User expressly agrees not to bring any action or claim against this Licensor for such disclosure.
Miscellaneous Terms and Conditions
a. User acknowledges that Explore Anywhere Holding Corp. will periodically transit information to register the Software with its license server via electronic transfer through the HTTP protocol (port 80). This information transfer is done to register the Software and to collect system specific information for license validation purposes. Explore Anywhere Holding Corp. acknowledges that the information collected is confidential and will not be distributed to any third party.
b. User acknowledges Explore Anywhere Holding Corp. will not issue refunds once a license code is issued.
c. User is expressly prohibited from assigning User's rights or obligations under this Software License Agreement without Licensor's prior written consent. Licensor may assign its rights under this Software License Agreement at any time, including but not limited to in a sale of Licensor or the Software.
d. This Software License Agreement constitutes the entire agreement between the parties relating to the subject matter of this Software License Agreement and hereby supersedes all prior agreements, statements, or representations. This Software License Agreement will only be modified by a writing signed by both parties.
e.This Software License Agreement will be governed by and interpreted in accordance with the laws of the State of Indiana and the federal law of the United States of America, without regard to the conflicts of laws rules thereof.
USER AND LICENSOR AGREE THAT ARBITRATION WILL BE THE EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR IN RELATION TO THIS SOFTWARE LICENSE AGREEMENT OR CONCERNING THE VALIDITY, INTERPRETATION, BREACH, VIOLATION, OR TERMINATION OF THIS SOFTWARE LICENSE AGREEMENT. THIS ARBITRATION WILL BE HELD IN WABASH, INDIANA AND WILL BE HELD IN ACCORDANCE WITH THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATOR WILL DECIDE THE CLAIM ON THE BASIS OF THE LEGAL PRINCIPLES AND LAWS OF THE STATE OF INDIANA AND WILL HAVE THE DISCRETION TO AWARD ALL COSTS AND ATTORNEYS' FEES. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY'S REASONABLE ATTORNEYS' FEES. USER AND LICENSOR AGREE THAT THE DETERMINATION OR AWARD OF THIS ARBITRATOR MAY BE ENTERED AS A JUDGMENT IN ANY COURT SITTING WITHIN THE STATE OF INDIANA THAT HAS JURISDICTION OVER THE SUBJECT MATTER OF THE DISPUTE. USER AND LICENSOR AGREE THAT THE PARTIES WILL BE REQUIRED TO BE PRESENT WITHIN THE STATE OF INDIANA IN ORDER TO PERFORM THEIR OBLIGATIONS UNDER THIS SOFTWARE LICENSE AGREEMENT. USER AND LICENSOR HEREBY AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING.
f. No waiver of rights under this Software License Agreement by either party will be recognized unless made in writing and signed by the party to be charged.
g. This Software License Agreement is solely between Licensor and User and will not confer any rights or remedies upon any third party, including third party beneficiaries.
h. A finding that any term or provision of this Software License Agreement is invalid or unenforceable will not affect the validity or enforceability of this Software License Agreement. Any term or provision of this Software License Agreement that is found to be invalid or unenforceable will be reformed to the extent necessary to make it valid and enforceable.