End user agreement for Mall23 eCommerce Solution
NOTICE -- READ THIS BEFORE DOWNLOADING, INSTALLING, OR USING THE SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ THE FOLLOWING LICENSE AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS LICENSE AGREEMENT. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE PRODUCT(S) IDENTIFIED ABOVE INCLUDING ANY ACCOMPANYING ELECTRONIC DOCUMENTATION (TOGETHER, THE "SOFTWARE"), YOU INDICATE YOUR ACCEPTANCE OF THIS LICENSE AGREEMENT ("LICENSE AGREEMENT"). IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS HEREIN, YOU SHOULD CANCEL AND NOT DOWNLOAD OR INSTALL. PLEASE NOTE THAT YOU MAY NOT USE, COPY, MODIFY OR TRANSFER THE SOFTWARE OR ANY COPY, EXCEPT AS EXPRESSLY PROVIDED IN THIS LICENSE AGREEMENT. This License Agreement is between Mall23., including its affiliates ("Mall23 Software"),and you, the person or entity downloading and/or using the Software. This License Agreement sets forth terms and conditions applicable to your use of the Software. The Software may be time-disabled. "Time-disabled" means that all Software functions and features will cease to operate after a pre-set period or on a specific date as described in the related documentation; if not specified, then after 30 days. If you wish to purchase a license for continued use, please contact Mall23 Software on the Internet at http://www.SiteBeater.com/ LICENSE: The Software is licensed, not sold, to you. The term "Software" shall also include any future trial versions and updates of the Software licensed to you by Mall23 Software. Subject to the terms of this License Agreement, you have a non-exclusive, personal and limited right to use the Software internally solely for educational, evaluation or personal purposes. You may not use the Software for any commercial, development or production purpose. If you are an entity, Mall23 Software grants to you the right to designate one individual within your organization to have the right to use the Software as set forth herein. You may use the Software only in accordance with the uses permitted by the permitted use table on a computer located in the United States and its territories or any other country to which this Software is legally exported. The Software is "in use" on a computer when it is resident in memory (i.e., RAM) or when executable and other files are installed on the hard drive or other storage device of that computer. This license does not entitle you to any support or telephone assistance. RESTRICTIONS: Except as expressly permitted by this License Agreement, you hereby acknowledge and agree that: (1) you will not modify or translate the Software, except that you may configure the Software using the menus, options and tools provided for such purposes and contained in the Software; (2) you will not copy the Software except as permitted in the paragraph labeled COPYRIGHT; (3) you will not in any way reverse engineer, disassemble or decompile the Software or any portion thereof except to the extent and for the express purposes authorized by applicable law notwithstanding this limitation; (4) you will not transmit, or provide access to, the Software over a network except as required by the Software's primary functions (5) you will not sublicense, assign, rent, sell, lease, distribute or otherwise transfer the Software or any of the rights granted by this License Agreement. You may, however, physically transfer the Software from one computer to another provided that you do not retain any copies of the Software on the prior computer except as authorized in the permitted use table; (6) you will not avoid, or attempt to avoid, any applicable time limitation; (7) you will not release the results of any performance or functional evaluation of the Software to any third party without prior written approval of Mall23 Software for each such release; and (8) you will not use Mall23 Software's name or refer to Mall23 Software directly or indirectly in any papers, articles, advertisements, sales presentations, news releases or releases to any third party without the prior written approval of Mall23 Software for each such use. If you wish to develop an interface to the Software or merge the Software with any other software, you shall inform Mall23 Software and Mall23 Software, at its option, and possibly for a fee, may provide you with information sufficient to enable interoperability between the Software and such other software or products. COPYRIGHT: The Software is copyrighted by Mall23 Software and/or its suppliers. You may not copy the Software except to provide a backup copy and to load the Software into the computer as part of executing the Software. Solely with respect to electronic documentation included with the Software, you may make an unlimited number of copies (either in hardcopy or electronic form), provided that such copies shall be used only for internal purposes and are not republished or distributed to any third party. Any and all other copies of the Software and/or the documentation made by you are in violation of this License Agreement. OWNERSHIP: You agree that Mall23 Software and/or its suppliers retain all right, title and interest in and to the Software and all copies at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. You agree that you neither own nor hereby acquire any claim or right of ownership to the Software or to any related patents, copyrights, trademarks or other intellectual property. You agree to use your best efforts to prevent and protect the contents of the Software from unauthorized disclosure or use. Mall23 Software and/or its suppliers reserve all rights not expressly granted to you. Mall23 Software's suppliers are the intended third party beneficiaries of this License Agreement and have the express right to rely upon and directly enforce the terms set forth herein. Any content or information accessed through the Software is the property of the applicable content/information owner and may be protected by applicable copyright law. This License Agreement gives you no rights to such content or information. TERM AND TERMINATION: This License Agreement is effective until terminated. You may terminate this License Agreement at any time by destroying the Software and all copies thereof. If you downloaded a trial version of the Software which is time disabled, this License Agreement will automatically terminate upon expiration of the applicable trial period. In addition, this License Agreement will automatically terminate if you fail to comply with its terms and conditions or upon written notice (which may be sent by e-mail) from Mall23 Software. You agree that, upon such termination, you will either destroy (or permanently erase) all copies of the Software, or return the Software to Mall23 Software, together with all copies and any other material you have received from Mall23 Software in connection with the Software. DISCLAIMER OF WARRANTY:THERE IS NO WARRANTY FOR THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTIES OF ANY KIND, EITHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. Mall23 SOFTWARE DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU BEAR THE ENTIRE RISK AS TO THE RESULTS, QUALITY AND PERFORMANCE OF THE SOFTWARE. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Mall23 SOFTWARE OR A Mall23 SOFTWARE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. This disclaimer of warranty constitutes an essential part of this LICENSE agreement. YOU ARE ADVISED TO VERIFY AND BACK UP YOUR WORK AND TO NOT RELY ON THE SOFTWARE FOR ANY REASON. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION. LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO LEGAL THEORY SHALL Mall23 SOFTWARE, ITS DISTRIBUTORS AND SUPPLIERS, OR ANY OTHER PERSON WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SOFTWARE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY GENERAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR OTHER DAMAGES OF ANY CHARACTER ARISING OUT OF THIS LICENSE AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, LOSS OF DATA, LOSS OF PROFITS, DATA OR OUTPUT FROM THE SOFTWARE BEING RENDERED INACCURATE, FAILURE OF THE SOFTWARE TO OPERATE WITH ANY OTHER PROGRAMS, DAMAGES FOR LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES OF WHATEVER NATURE, EVEN IF Mall23 SOFTWARE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THIS LIMITATION OF LIABILITY IS REASONABLE. SOME STATES/JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EXPORT CONTROLS: None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country in violation of the laws and administrative regulations of the United States or any other applicable jurisdiction; or (ii) to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading, installing or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. NO OBLIGATION: Mall23 Software is under no obligation to develop, maintain or market the Software. Future versions of the Software, if any, may not be compatible with the current version of the Software. FEEDBACK: Any comments or materials sent to Mall23 Software including feedback data, such as questions, comments, suggestions, or the like regarding the Software (collectively "Feedback"), shall be deemed to be non-confidential. Mall23 Software shall have no obligation of any kind with respect to such Feedback and shall be free to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute the Feedback to others without limitation. Further, Mall23 Software shall be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products incorporating such Feedback. U.S. GOVERNMENT RIGHTS: If the Software is downloaded or installed for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), the Software is provided to the U.S. Government as commercial computer software under FAR 12.212 and DFARS 227.7202, or an equivalent provision (e.g., in supplements of various U.S. government agencies, as applicable), and the restrictions set forth in this License Agreement. Manufacturer is Mall23 Software, Inc., and/or its affiliates. GENERAL: You must reproduce and include any copyright notices, trademarks or other proprietary legends of Mall23 Software and its suppliers on any copy of the Software made by you. This License Agreement is governed by the laws of the State of Utah, United States, without reference to conflict of laws provisions or the United Nations 1980 Convention on Contracts for the International Sale of Goods and any amendments thereto. You acknowledge that a violation of this License Agreement may cause irreparable harm to Mall23 Software, and you agree that, in addition to any other remedies provided by law, Mall23 Software shall be entitled to seek injunctive relief against any such violation without having to post a bond. If any provision of this License Agreement is ruled invalid, such invalidity shall not affect the validity of the remaining portions of this License Agreement. All terms of any purchase order or other ordering document submitted by you shall be superseded by this License Agreement. Should you have any questions concerning this License Agreement, you may contact Mall23 Software. The product name for the Software is a trademark or registered trademark of Mall23 Software. All other trademarks displayed by the Software are the property of their respective owners.