End user agreement for FlightCheck Designer (Macintosh)
EXHIBIT TO SOFTWARE LICENSE AGREEMENT
LICENSE AGREEMENT. Please read the terms and conditions of this license agreement carefully before opening the package containing the program CD, or the diskette, the computer software therein, and the accompanying user documentation (the "program") or installing the Software obtained by electronic means. THE PROGRAM IS COPYRIGHTED AND LICENSED (NOT SOLD) TO YOU BY MARKZWARE, INC., FOR USE ONLY UNDER THE TERMS OF THIS LICENSE, AND MARKZWARE RESERVES ANY RIGHTS NOT EXPRESSLY GRANTED TO YOU. You own the disk(s) on which the Software is recorded or fixed, but Markzware and its licensors retain ownership of the Software itself. By opening the package containing the program or installing the Program, you are accepting and agreeing to the terms of this license agreement. If you are not willing to be bound by the terms of this license agreement, you should promptly return the package in un-opened form, and you will receive a full refund of your money. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE PROGRAM BETWEEN YOU (REFERRED TO AS "LICENSEE") AND MARKZWARE SOFTWARE, INC. (REFERRED TO AS "LICENSOR" OR "MARKZWARE"), AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
1. License. This License allows one user to use one copy of the Software on a single computer at a time. To "use" the Software means that the Software is either loaded in the temporary memory (i.e., RAM) of a computer or installed on the permanent memory of a computer. (i.e., hard disk, CD ROM, etc.) You may install the Software on a common storage device shared by multiple computers, provided that you have no more users and computers having access to the common storage device than the number of licensed copies of the Software. You must have some mechanism which locks-out any concurrent users or computers in excess of the number of licensed copies of the Software. (Additional Licenses are needed for one copy of the Software stored on the common storage device accessed by multiple users or computers.) If the Software is installed on the permanent memory of a single desktop computer (i.e., not a storage device shared by multiple computers) and that desktop computer is used by one individual for at least 80% of the time the computer is in use, that same individual may also use a copy of the Software on a portable or home computer. The Licensee shall not have the right: (i) to deploy the Licensed Software in any manner that serves to support or enhance a service-based business model including, but not limited to electronic commerce services, web hosting, digital asset management, collaboration of multiple third parties, auctions, workflow and contact management; (ii) to offer the Software‚Äôs function as a service; or (iii) to deploy the Licensed Software in the manner of an application service provider.
Copy for Backup. You may take one copy of the Software in machine readable form solely for backup purposes. The Software is protected by copyright law. As an express condition of this License, you must reproduce on each copy the Markzware copyright notice and any other proprietary legends that were on the original copy supplied by Markzware.
Rental/Lease Prohibition. You may not rent, lease, or lend the Software.
Transfer. You may permanently transfer all your rights under this License to another party by providing to such party all copies of the Software licensed under this License together with a copy of this License and all written materials accompanying the Software, provided that you and the other party both re-register the Software by signing the accompanying Transfer of Software License Agreement and mailing it to Markzware.
Upgrades. If the Software is labeled as an "upgrade," you must be properly licensed to use a product identified by Markzware as being eligible for the upgrade in order to use the Software. Software labeled as an "upgrade" replaces and/or supplements the product that formed the basis for your eligibility for the upgrade. You may use the resulting upgraded product only in accordance with the terms of this License. If the Software is an upgrade of a component of a package of software programs that you licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one computer.
2. Restrictions. The Software contains trade secrets in its human perceivable form and, to protect them, YOU MAY NOT REVERSE ENGINEER, DECOMPILE, DISASSEMBLE, OR OTHERWISE REDUCE THE SOFTWARE TO ANY HUMAN PERCEIVABLE FORM. YOU MAY NOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN, RESELL FOR PROFIT, OR CREATE DERIVATIVE WORKS BASED UPON THE SOFTWARE OR ANY PART THEREOF. YOU MAY NOT PROVIDE ACCESS TO THE SOFTWARE BY ANY EXTERNAL OR OTHER MEANS INCLUDING, BUT NOT LIMITED TO INTERNET PROTOCOL, AND VIRTUAL PRIVATE NETWORK NOR AUTOMATE THE USE OF THE SOFTWARE BY THE USE OF THIRD PARTY MEANS OR IN ANY OTHER WAY EXCEPT AS PROVIDED HEREIN OR PROVIDED FOR BY OTHER LICENSOR PRODUCTS OR BY PRIOR, WRITTEN AGREEMENT WITH LICENSOR. YOU MAY NOT USE THE SOFTWARE TO AUTOMATE THIRD PARTY OR OTHER PRODUCTS IN A MANNER WHICH WOULD VIOLATE THE LICENSE AGREEMENT(S) OF THOSE PRODUCTS.
3. Termination. This License Agreement is effective upon your opening of this package and shall continue until terminated. You may terminate this License Agreement at any time by returning the Program and all copies thereof and extracts therefrom to Licensor. Licensor may terminate this License Agreement upon the breach by you of any term hereof. Upon such termination by Licensor, you agree to return to Licensor the Program and all copies and portions thereof.
4. Export Law Assurances. You agree that neither the Software nor any direct product thereof is being or will be shipped, transferred or re-exported, directly or indirectly, into any country prohibited by the United States Export Administration Act and the regulations thereunder or will be used for any purpose prohibited by the Act.
5. Limited Warranty and Disclaimer, Limitation of Remedies and Damages. YOU ACKNOWLEDGE THAT THE SOFTWARE MAY NOT SATISFY ALL YOUR REQUIREMENTS OR BE FREE FROM DEFECTS. MARKZWARE WARRANTS THE DISKETTES ON WHICH THE SOFTWARE IS RECORDED TO BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR 90 DAYS FROM PURCHASE, BUT THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS ARE LICENSED "AS IS." ALL IMPLIED WARRANTIES AND CONDITIONS (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) ARE DISCLAIMED AS TO THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS AND LIMITED TO 90 DAYS AS TO THE DISKETTES. YOUR EXCLUSIVE REMEDY FOR BREACH OF WARRANTY WILL BE THE REPLACEMENT OF THE DISKETTES OR REFUND OF THE PURCHASE PRICE. IN NO EVENT WILL MARKZWARE OR ITS DEVELOPERS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR ACCOMPANYING WRITTEN MATERIALS, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF MARKZWARE OR AN AUTHORIZED MARKZWARE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The Markzware liability to you for actual damages for any cause whatsoever, and regardless of the form of the action, will be limited to the greater of $5 or the money paid for the Software that caused the damages.
THE ABOVE LIMITATIONS WILL NOT APPLY IN CASE OF PERSONAL INJURY ONLY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6. General. This License will be construed under the laws of the State of California, except for that body of law dealing with conflicts of law. If any provision of this License shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this License will remain in full force and effect. If you are a U.S. Government end-user, this License of the Software conveys only "RESTRICTED RIGHTS," and its use, disclosure and duplication are subject to Federal Acquisition Regulations, 52.227-7013 (c) (1) (ii).
7. Trademark. The Software may be governed by a trademark, registered by Licensor with the federal government. No right, license, or interest to such trademark is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to such trademark.
8. Costs of Litigation. If any action is brought by either party to this License Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation.
9. Severability. Should any term of this License Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
10. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
Markzware, 1805 E. Dyer Road, Suite 101, Santa Ana, CA 92705 Markzware End User License Agreement