This software agreement (the "Agreement") provides the terms and conditions under which Divine Downloads ("Divine Downloads") is willing to grant the person or entity (the "Licensee") installing and using the Licensed Software (as defined below) a non-exclusive, limited right to use the Licensed Software. READ THIS AGREEMENT CAREFULLY. If Licensee agrees to only use the Licensed Software in accordance with the following terms and conditions and is willing to be bound by this Agreement in its entirety, acknowledge such acceptance as provided and continue with the installation of the Licensed Software. OTHERWISE, IF LICENSEE DOES NOT AGREE WITH ANY OF THE FOLLOWING TERMS AND CONDITIONS, DO NOT INSTALL THE SOFTWARE AND DELETE ALL OF THE FILES, IF ANY, DOWNLOADED WITH THE LICENSED SOFTWARE.
1. Licensee warrants and represents that the person accepting this Agreement on behalf of Licensee is its legally authorized representative and is duly authorized to accept agreements of this type on behalf of Licensee and obligate Licensee to the terms and conditions herein. Any breach of this warranty and representation is a material breach of this Agreement and, in such event, this Agreement and the rights granted to Licensee shall terminate automatically.
2. Definitions. For the purposes of this agreement:
refers to version 1.0 of the computer software supplied with this Agreement entitled "TWin server module" and provided in MOO source code form.
refers to version 1.0 of the computer software supplied with this Agreement entitled "TWin Client" and provided in Java source code form.
refers to the Server Software, Client Software and any other computer software and documentation, if any, supplied with this Agreement.
refers to any work based on the Licensed Software, including:
a. any work which incorporates all or part of the Licensed Software,
b. any work which includes modifications to the Software, including but not limited to bug fixes,
c. any work which would be regarded as a derivative work of the Software under the United States Copyright Law, and
d. any work which is otherwise covered by any of DIVINE DOWNLOADS's intellectual property rights in the Licensed Software.
"Grant Back Software"
refers to any
e. modification of the objects distributed as the Server Software, including but not limited to the addition, deletion, and modification of verbs and properties on the objects,
f. creation of children to the objects distributed as the Server Software except for children of the objects named "generic TWin form", "generic TWin dialog box", and "generic TWin listener", and
g. modification to the Client Software other than modifications to files named "twin.properties" and "twinsys.properties."
refers to use of the Licensed Software solely for the purpose of education or research. "Non-Commercial Purpose" excludes, without limitation, any use of the Software as part of or in connection with a product (including software) or service which is sold, offered for sale, licensed, leased, loaned or rented.
3. Server License. Subject to the terms and conditions of this Agreement, DIVINE DOWNLOADS grants Licensee a limited, personal, royalty-free, non-exclusive, non-transferable right to install and use the Licensed Software for Non-Commercial Purposes on a single server controlled by Licensee.
4. Client License. Subject to the terms and conditions of this Agreement, DIVINE DOWNLOADS grants Licensee a limited, personal, royalty-free, non-exclusive, non-transferable right to provide the Client Software to others provided that:
a. Licensee's provision of the Client Software to others is only for Non-Commercial Purposes and
b. The receiver of the Client Software uses the Client Software only for Non-Commercial Purposes.
5. Adaptations. Licensee may create Adaptations of the Licensed Software only if
a. Licensee treats the Adaptations as Licensed Software under this Agreement, and
b. the Adaptations include all copyright notices appearing in the Licensed Software, and
c. any Adaptations of the Licensed Software do not disable, modify or change the Licensed Software's requirement that an end-user accept the terms and conditions of the license agreement(s) contained in such Licensed Software before use and/or installation and
d. any Adaptations of the Licensed Software do not modify or change the terms and conditions of such license agreement(s).
6. Grant Back. Licensee hereby grants DIVINE DOWNLOADS a non-exclusive, royalty-free, fully paid-up, worldwide, perpetual license to:
a. reproduce, prepare derivative works based on and distribute all or part of any Grant Back Software; and
b. make, have made, use, offer to sell, sell, license or import any products (including software) or services under any intellectual property rights owned or licensed by Licensee which relate to
i. all or part of any Grant Back Software or
ii. methods or concepts embodied in, or implemented through the execution of any Grant Back Software.
Licensee shall provide DIVINE DOWNLOADS with copies of Grant Back Software in source code form at the address supplied with the Licensed Software.
7. Distributing and Receiving Adaptations. Licensee may provide an Adaptation to other people or entities only if:
a. either such other people or entities have already downloaded the Licensed Software directly from DIVINE DOWNLOADS and have agreed to the same terms as this Agreement or the Adaptation does not include any portion of the Server Software, and
b. the Adaptation is provided by Licensee for Non-Commercial Purposes, without any charge or fee,
c. the Adaptation is provided with a short summary of the difference between the Adaptation and the Licensed Software downloaded from DIVINE DOWNLOADS,
d. such other people or entities treat the Adaptation as Licensed Software under this agreement with DIVINE DOWNLOADS, and
e. before Licensee sends such Adaptation to any other people or entities, Licensee first provides DIVINE DOWNLOADS with a copy of the Adaptation (in source code form) and the summary.
Licensee shall treat as Licensed Software under this Agreement any Adaptation it may receive from another person or entity.
8. No Other Rights. Licensee acknowledges that it obtains no ownership rights in the Licensed Software under the terms of this Agreement. All rights in the Licensed Software including but not limited to trade secrets, trademarks, service marks, patents, and copyrights are, shall be and will remain the property and ownership of DIVINE DOWNLOADS. All copies of the Licensed Software delivered to Licensee or made by Licensee remain the property of DIVINE DOWNLOADS. EXCEPT AS EXPRESSLY AUTHORIZED UNDER THIS AGREEMENT, LICENSEE SHALL NOT USE, COPY, DISTRIBUTE, DISPLAY OR TRANSFER THE LICENSED SOFTWARE IN ANY FORM.
9. Necessary third party rights. Licensee warrants that it has obtained lawful permission to use all hardware and software required in order to use the Licensed Software including but not limited to obtaining appropriate licenses to use and create software in the MOO and Java program languages.
10. Export. Licensee acknowledges that the Licensed Software is subject to U.S. export laws and regulations and any use or transfer of such Licensed Software must be authorized under those regulations. Licensee hereby assures DIVINE DOWNLOADS that Licensee will not, directly or indirectly, "export" or "reexport" the Licensed Software to Albania, Armenia, Azerbaijan, Belarus, Bulgaria, Cambodia, Cuba, Estonia, Georgia, Iran, Iraq, Kazakhstan, Kyrgystan, Laos, Latvia, Libya, Lithuania, Moldova, Mongolia, North Korea, People's Republic of China, Romania, Russia, Sudan, Syria, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, or Vietnam. The obligations of this written assurance shall survive the term of this or any other related agreement. For purposes of this Paragraph, "export" and "reexport" mean transferring or releasing to another country or to a national of another country (wherever that person is located) by any means -- physical, electronic, r otherwise.
11. Licensed Software Provided as "AS IS". DIVINE DOWNLOADS has no obligation to support or maintain the Licensed Software and grants Licensee this right to use the Licensed Software "AS IS". LICENSEE, AND ANYONE TO WHOM LICENSEE PROVIDES THE LICENSED SOFTWARE PURSUANT TO THIS AGREEMENT; ASSUME TOTAL RESPONSIBILITY AND RISK FOR LICENSEE'S USE OF THE SOFTWARE. DIVINE DOWNLOADS DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THE WARRANTIES OF TITLE OR NON-INFRINGEMENT. IN NO EVENT SHALL DIVINE DOWNLOADS BE LIABLE FOR (a) ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF DIVINE DOWNLOADS OR ANY OF ITS AUTHORIZED REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (b) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SOFTWARE, OR (c) ANY CLAIM BY ANY THIRD PARTY. BY WAY OF EXAMPLE ONLY, DIVINE DOWNLOADS DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL BE ERROR-FREE. As used in this paragraph, "DIVINE DOWNLOADS" includes its affiliated companies and its and their employees, directors, officers, agents, representatives, subcontractors, service providers and suppliers.
12. Sole Remedy. IF FOR ANY REASON THE SOFTWARE IS UNUSABLE OR DOES NOT PERFORM AS LICENSEE INTENDED OR EXPECTED, THEN LICENSEE'S SOLE REMEDY SHALL BE TO EITHER TERMINATE THIS AGREEMENT OR TO MODIFY THE SOFTWARE TO CREATE AN ADAPTATION WHICH IS USABLE OR PERFORMS AS INTENDED OR EXPECTED. This limitation on remedies shall apply even if Licensee cannot modify the software to make the software usable or perform as intended or expected. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. IN THE EVENT APPLICABLE STATE OR FEDERAL LAW DOES NOT ALLOW THE COMPLETE EXCLUSION OF ANY WARRANTIES AS SET FORTH IN THIS AGREEMENT, DIVINE DOWNLOADS'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
13. Receive E-Mails. By downloading and installing the Licensed Software, Licensee agrees that DIVINE DOWNLOADS, or third parties on DIVINE DOWNLOADS's behalf, may send unsolicited e-mail messages or other unsolicited communications relating to the Licensed Software to Licensee, its employees and representatives.
14. Termination. This Agreement and the rights granted to Licensee shall terminate automatically if Licensee fails to comply with any of the terms and conditions of this Agreement. Upon termination, all licenses granted herein shall terminate and Licensee shall immediately destroy all copies of the Licensed Software.
15. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, applicable to agreements made and to be performed wholly therein without regard to its conflicts of law rules. Licensee agrees that any legal action or proceeding between DIVINE DOWNLOADS and Licensee for any purpose concerning this Agreement or the obligations hereunder shall be brought exclusively in a federal or state court of competent jurisdiction sitting in New York. Any cause of action or claim Licensee may have with respect to the Licensed Software must be brought within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. DIVINE DOWNLOADS's failure to insist upon or enforce strict performance of any provision of this Agreement is not a waiver of any provision or right.
16. Titles. The paragraph titles are intended only to assist the reader as an index device and are not intended to be descriptive of the paragraph or to be used for construction or interpretation.
17. Assignment. Neither this Agreement nor any of Licensee's rights hereunder shall be assigned, sublicensed, or transferred (in insolvency proceedings, by mergers, acquisitions or otherwise) by Licensee without the written consent of DIVINE DOWNLOADS. Any assignment or other transfer which is inconsistent with the foregoing shall be null and void ab initio. DIVINE DOWNLOADS may assign all or a portion of its rights and obligations hereunder.