End user agreement for Monarch Search
Brush Systems Group, Incorporated
(BRUSH SYSTEMS GROUP, INC.)
as authorized by and acting for
FirstStop WebSearch, LLC
Monarch Search License Agreement
PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE INSTALLING THIS SOFTWARE. INSTALLING THIS SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THEM, YOU SHOULD PROMPTLY RETURN THIS SOFTWARE, ALONG WITH YOUR RECEIPT, TO THE FIRSTSTOP WEBSEARCH, LLC, AND YOUR MONEY WILL BE REFUNDED. THIS AGREEMENT CONSTITUTES THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND BRUSH GROUP CORPORATION (BRUSH SYSTEMS GROUP, INC.) ("LICENSER") WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
TYPES OF LICENSES
In order to install and use the software, you must obtain one of the following two types of licenses:
1. Non-Commercial Use License,
To qualify for a Non-Commercial Use License, you must:
A. Use the software solely on a system under the Microsoft operating system (whether for commercial or non-commercial use), or
B. Use the software for non-commercial purposes as defined herein and be a Non-Commercial Entity as defined herein, or
C. Be an Excluded Contractor as defined herein.
2. Commercial Use License.
The term "Non-Commercial Entity" is limited to the following: educational institutions (such as pre-schools, elementary schools, middle or junior high schools, high schools, and community, junior colleges or universities), non-profit organizations (such as public libraries, charities, and other organizations created for the promotion of social welfare), "Education Affiliated Users," and individual users who use the software for personal use (such as connecting to an Internet Service Provider for personal use, hobby, recreational,, or educational purposes).
The term "Education Affiliated Users" is limited to students, faculty members, researchers, administrators, support staff, and employees of a university or other educational institution. The term "Excluded Contractor" is limited to independent, solo contractors while performing work for a Non-commercial Entity, such as a university or other educational institution in an individual capacity. If you qualify for a Non-Commercial Use License, you can obtain a Non-Commercial Use License.
GRANT OF LICENSE
You may use the software only under one of the following two types of licenses at any time:
Commercial Use License
Provided that you have selected and paid the required license fee(s) for a Commercial Use License, and subject to the terms and conditions contained herein, BRUSH SYSTEMS GROUP, INC. hereby grants to you, an end user, a non-transferable, non-exclusive, non-sub-licensable license to install and use the software for commercial purposes only on the number of computers paid for by you. You agree that upon termination of your Commercial Use License, you will cease using the software, destroy any copies that you have made, and remove the software from your computers.
Non-Commercial Use License
Provided that you have selected and qualify for a Non-Commercial Use License as specified above, and subject to the terms and conditions contained herein, BRUSH SYSTEMS GROUP, INC., hereby grants to you, an end user, a personal, non-transferable, non-exclusive, non-sub-licensable license to install and use the software for non-commercial purposes only, but if you are an Excluded Contractor (as defined above), for commercial and non-commercial purposes.
For the avoidance of doubt, the following are considered examples of commercial uses of the software, unless you are using the software solely at a Non-Commercial Entity, or as an Excluded Contractor, as defined above:
(1) use at or for a commercial enterprise
(2) use for financial gain, personal or otherwise
(3) use by government agencies
(4) use by a telecommunication or Internet service provider company
(5) use at home or while traveling for work for which you will be paid
(6) use in connection with administering a commercial web site
(7) use in connection with the provision of professional services for which you are compensated (including paid system administration); and
(8) bundling or integrating the software with any hardware product or another software product for commercial purposes.
BRUSH SYSTEMS GROUP, INC. and/or its licensors reserve all rights not expressly granted to you herein. This license is not a sale of the software or any copy of the software. The software contains valuable trade secrets of BRUSH SYSTEMS GROUP, INC. and its licensors. All worldwide ownership of and all rights, titles and interests in and to the software, and all copies and portions of the software, including without limitation, all intellectual property rights therein and thereto, are and will remain exclusively with BRUSH SYSTEMS GROUP, INC. The software is protected, among other ways, by the copyright laws of the United States and international copyright treaties. All rights not expressly granted herein are retained by BRUSH SYSTEMS GROUP, INC., and its licensors.
The SOFTWARE is owned by BRUSH SYSTEMS GROUP, INC. or its suppliers and is protected by United States copyright laws and international treaty provisions. Therefore, you must treat the SOFTWARE like any other copyrighted material (i.e., a book or musical recording) except that you may either (a) make one copy of the SOFTWARE solely for backup or archival purposes, or (b) transfer the SOFTWARE to a single hard disk provided you keep the original solely for backup or archival purposes. You may not copy the written materials accompanying the software.
You may not rent or lease the SOFTWARE, but you may transfer the SOFTWARE and accompanying written materials on a permanent basis provided you retain no copies and the recipient agrees to the terms of this Agreement. You may not reverse engineer, decompile, or disassemble the SOFTWARE. If SOFTWARE is an update, any transfer must include the update and all prior versions.
BRUSH SYSTEMS GROUP, INC. warrants that (a) the SOFTWARE will perform substantially in accordance with the accompanying written materials for a period of 90 days from the date of receipt; and (b) any hardware accompanying the SOFTWARE will be free from defects in materials and workmanship under normal use and service for a period of one year from the date of receipt. Any implied warranties on the SOFTWARE and hardware are limited to 90 days and one (1) year, respectively. Some states do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you.
BRUSH SYSTEMS GROUP, INC.'s entire liability and your exclusive remedy shall be, at BRUSH SYSTEMS GROUP, INC.'s option, either (a) return of the price paid or (b) repair or replacement of the SOFTWARE or hardware that does not meet BRUSH SYSTEMS GROUP, INC.'s Limited Warranty and which is returned to BRUSH SYSTEMS GROUP, INC. with a copy of your receipt. This Limited Warranty is void if failure of the SOFTWARE or hardware has resulted from accident, abuse, or misapplication. Any replacement SOFTWARE will be warranted for the remainder of the original warranty period or 30 days, whichever is longer. THESE REMEDIES ARE NOT AVAILABLE OUTSIDE OF THE United States of America.
MAINTENANCE, SUPPORT AND UPDATES
BRUSH SYSTEMS GROUP, INC. is under no obligation to maintain or support or update the software in any way, or to provide updates or error corrections. Subject to the terms and conditions herein and provided that you have paid any applicable license and other fee(s), if you are a Commercial Use licensee, you will receive software updates (as BRUSH SYSTEMS GROUP, INC., in its sole discretion, releases from time to time), technical support via email, phone, and the web for certain time periods set by BRUSH SYSTEMS GROUP, INC. For further information, go to http://www.brushgroup.com/support.html <http://www.firststopwebsearch.com/support.html>.
NO OTHER WARRANTIES
BRUSH SYSTEMS GROUP, INC. disclaims all other warranties, either express or implied, including but not limited to implied warranties of merchant ability and fitness for a particular purpose, with respect to the SOFTWARE, the accompanying written materials, and any accompanying hardware. This limited warranty gives you specific legal rights. You may have others, which vary from state to state.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES
In no event shall BRUSH SYSTEMS GROUP, INC. or its suppliers be liable for any damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of the use of or inability to use this BRUSH SYSTEMS GROUP, INC. product, even if BRUSH SYSTEMS GROUP, INC. has been advised of the possibility of such damages. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
This Agreement will terminate immediately and automatically without notice if you breach any provision in this Agreement. Upon termination you will remove all copies of the software or any part of the software from any and all computer storage devices and destroy the software. At BRUSH SYSTEMS GROUP, INC. request, you or your authorized signatory, will certify in writing to BRUSH SYSTEMS GROUP, INC. that all complete and partial copies of the software have been destroyed and that none remain in your possession or under your control. The provisions of this Agreement, except for the license granted warranty, will survive termination.
U.S. GOVERNMENT RESTRICTED RIGHTS
The software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph(c)(1)(ii) of the Rights in Technical Data and Computer software clause at DFAR 252.227-7013 or subparagraph (c)(1) and (2) of the Commercial Computer software - Restricted Rights at 48 CFR 52.227-19 of FAR, or Clause 18 52.277-86(d) of NASA Supplement to the FAR, as applicable. Manufacturer is BRUSH SYSTEMS GROUP, INC., 13628 San Antonio Rd, Atascadero, CA. 93422.
You acknowledge and agree that the software may be subject to restrictions and controls imposed by the United States Export Administration Act (the "Act") and the regulations there under. You agree and certify that neither the software nor any direct product thereof is being or will be acquired, shipped, transferred, or re-exported, directly or indirectly, into any country, except pursuant to an export control license under the Act and the regulations there under, or will be used for any purpose prohibited by the same. By using the software, you are acknowledging and agreeing to the foregoing, and you are representing and warranting that you will comply with all of the United States and other applicable country laws and regulations when either exporting or re-exporting or importing the software or any underlying information technology. Further, you represent and warrant that you are not a national of Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria or a party listed in the U.S. Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals.
This Agreement is governed by the laws of the State of California without regard to conflict of laws rules and principles. Application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this Agreement shall not be affected thereby. No delay or failure by either party to exercise or enforce at any time any right or provision hereof shall be considered a waiver thereof or of such party's right thereafter to exercise or enforce each and every right and provision of this Agreement. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. You may not assign this Agreement in whole or in part, without BRUSH SYSTEMS GROUP, INC.'s prior written consent. Any attempt to assign this Agreement without such consent will be null and void. This Agreement is the complete and exclusive statement between you and BRUSH SYSTEMS GROUP, INC., relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties, if any. In the case of any conflict between the terms of this Agreement and the provisions of any purchase order for the software, the terms of this Agreement shall control.