End user agreement for Search Engine Marketing
Search Engine Marketing END USER LICENSE AGREEMENT
BY CLICKING ON THE "ACCEPT" BUTTON WHEN YOU INSTALL THE SOFTWARE, YOU CONSENT TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK ON THE "DECLINE" BUTTON: THE INSTALLATION PROCESS WILL NOT CONTINUE AND YOU WILL NOT BE ALLOWED TO USE THE SOFTWARE.
Subject to payment of applicable license fees and to the terms and conditions of this Agreement, Search Engine Marketing("Search Engine Marketing, Inc.") grants you a non-exclusive, non-transferable, limited, perpetual (subject to the termination provision below) license to use the Search Engine Marketing software and any accompanying documentation or services (collectively, "Software") in the manner described below under "Scope of Grant". For the free trial period, Search Engine Marketinggrants you the same license to use the Software, except it lasts only for the free trial period, and is not subject to payment.
IMPORTANT - READ CAREFULLY:
THIS CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A LEGAL ENTITY THAT WILL USE THE SOFTWARE AND THAT YOU REPRESENT AS AN EMPLOYEE OR AUTHORIZED AGENT) AND Search Engine Marketing WITH RESPECT TO THE SOFTWARE IDENTIFIED AND DEFINED BELOW. BY INSTALLING, COPYING, DOWNLOADING OR OTHERWISE ACCESSING THE SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, Search Engine Marketing IS UNWILLING TO PROVIDE AND LICENSE THE SOFTWARE TO YOU. IN SUCH EVENT, YOU MAY NOT USE OR COPY THE SOFTWARE, AND YOU SHOULD PROMPTLY DESTROY ALL COPIES OF THE SOFTWARE AND ACCOMPANYING DOCUMENTATION, OR NOTIFY Search Engine Marketing TO OBTAIN INSTRUCTIONS ON RETURN OF THE UNUSED SOFTWARE.
THE SOFTWARE IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. THE SOFTWARE IS LICENSED, NOT SOLD.
1.1 "Software" means a release of the Search Engine Marketing software.
1.2 "Period" means the term of this Agreement, as specified in Section 7.1, during which Search Engine Marketing shall license the Software to you for testing purposes and provide limited technical support, subject to the terms of this Agreement.
1.3 "Documentation" means the documentation with respect to the Software provided to you under this Agreement.
1.4 "Software" shall mean Search Engine Marketing software.
2.1 Right to Use. Subject to the terms and conditions of this Agreement, Search Engine Marketing grants you a royalty-free, nonexclusive, nontransferable, non-assignable license, without right of sublicense, to use the Software, together with any supporting documentation provided by Search Engine Marketing to you solely for the purpose of internal evaluation of the Software by you. You shall use the Software only at your designated site at the address you provided when registering for the Program.
2.2 License Restrictions. You shall have no right to copy, modify or create derivative works of the Software and Documentation, nor to reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from the Software, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation. In addition, you shall not:
2.2.1 Merge the Software with another program for any purpose whatsoever, unless the Software are merged solely for your internal purposes (any merged portion of the Software is subject to this Agreement);
2.2.2 sublicense, distribute, sell, lend, rent, lease, transfer, or grant any rights in or to all or any portion of the Software; or
2.2.3 Transfer or re-export, directly or indirectly, the Software to any person or entity outside of the United States without the prior written consent of Search Engine Marketing; or
2.2.4 Use, post, transmits or introduces any device, software or routine which interferes or attempts to interfere with the operation of the Software; or make the Software available for timesharing, application service provider or service bureau use.
2.3 Rights in Software. Search Engine Marketing may at any time and at its sole election replace, modify, alter, improve, enhance, or change the Software, with or without notice. This or to the Software, or any patent, copyright, trade secret, trade name, trademark or other proprietary or intellectual property rights related to the Software. Except for the limited rights expressly granted to you herein, Search Engine Marketing retains all of its right, title and interest in and to the Software and to any feedback, modifications, improvements, reports, designs, inventions, specifications or other materials developed in connection with your use of the Software, and all intellectual property rights therein (collectively, "Developments"), whether prepared by Search Engine Marketing or by you. You hereby assigns to Search Engine Marketing all of your ownership rights in the Developments and agrees to execute such documents and perform such acts as are reasonably necessary to perfect such assignment, at Search Engine Marketing' expense. You shall not remove, alter, or obscure any proprietary notices contained on or within the Software. Software license is not a sale and does not transfer to you any title or ownership interest in
You may not, nor permit any third party to, disassemble, decompile or reverse engineer all or any portion of the Software or Service in any manner, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation.
4. Evaluation and Reporting
You agree to regularly use the Software during the term of this Agreement. You also agree to allow Search Engine Marketing to monitor utilization of the Software, to allow Search Engine Marketing to compile aggregate data, participate in dialog, respond to questionnaires and perform other activities in a regular and timely manner as reasonably requested by Search Engine Marketing, for the purpose of evaluating the performance and usability of the Software.
5.1 Definition. In connection with this Agreement, each party may have access to information that is confidential to the other party ("Confidential Information"). Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Confidential Information may also include information disclosed to a disclosing party by third parties. Without limitation, Search Engine Marketing' Confidential Information shall include (i) the Software, (ii) the Documentation, (iii) any information gained from its use of the Software and Documentation (including information contained in feedback you provide), (iv) any information regarding the content, purpose, design or function of the Software, (v) any know-how, technical data or other information, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, developments, inventions, processes, marketing or finances, and (vi) the Developments. Confidential Information shall not, however, include any information which the receiving party can establish by written documentation (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party to the receiving party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is in the possession of the receiving party, without confidentiality restrictions, at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is developed independent of the Confidential Information, as shown by written records prepared contemporaneously with such independent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the receiving party shall provide reasonable advance notice thereof to enable the disclosing party to seek a protective order or otherwise prevent such disclosure.
5.2 Non-use and Non-disclosure. Each party agrees not to use Confidential Information of the other party except as expressly permitted under the license granted in Section 2. The receiving party agrees not to disclose Confidential Information of the other party to any third party, or to employees of the receiving party, except to those employees who are required to have such information in order to evaluate or engage in discussions concerning the contemplated business relationship. Each party shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own confidential information of a similar nature and shall have its employees who have access to the other party's Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. Each party shall immediately notify the other in the event of any unauthorized use or disclosure of the other party's Confidential Information.
5.3 Residuals. Notwithstanding anything to the contrary in Section 5.2, the recipient of Confidential Information hereunder shall be free to use for any purpose the Residuals resulting from access to or work with such Confidential Information, provided that the Recipient shall maintain the confidentiality of the Confidential Information as provided under this Agreement. The term "Residuals" means information in non-tangible form, which may be retained in the unaided memory of persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein. An employee's memory is considered unaided if the employee has not intentionally memorized the Information for the purpose of retaining and subsequently using or disclosing it. Nothing contained in this Section gives the recipient the right to disclose, publish, or disseminate, except as set forth elsewhere in this Agreement: (i) the source of Residuals; (ii) any financial, statistical or personnel data of the disclosing party; or (iii) the business plans of the disclosing party.
5.4 Return of Materials. All documents and other tangible objects containing or representing the disclosing party's Confidential Information and all copies thereof which are in the possession of the receiving party shall be and remain the property of the disclosing party and shall be promptly returned to the disclosing party upon the disclosing party's request. Notwithstanding the foregoing, the receiving party may retain one archival copy of any written or photographic Confidential Information of the other party provided hereunder, which copy shall be used only by the receiving party and its legal advisors in connection with review of the receiving party's obligations hereunder. The obligations of each party shall survive until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and made generally available through no action or inaction of the receiving party. Each party agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the other party, entitling the other party to obtain injunctive relief in addition to all legal remedies.
6. Scope Disclaimer of Warranty
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS." Search Engine Marketing MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION OR THE USE OR OPERATION THEREOF AND SPECIFICALLY DIS-CLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. Search Engine Marketing does not guarantee or assume responsibility for any impact of use of the Software on your existing production or other environment. The Documentation may be in draft form and will, in many cases, be incomplete.
7. Term and Termination
7.1 Term and Termination. The Period shall end upon the earlier of (a) the date of general availability of the Software, as Search Engine Marketing may determine in its sole discretion or (b) the termination of this Agreement by either party upon not less than five (5) days prior written notice to the other.
7.2 Termination for Cause. Either party may terminate this Agreement or the license granted hereunder at any time, immediately upon written notice, in the event the other party fails to comply with any of the terms and conditions of this Agreement.
7.3 Effect of Termination. Within ten (10) days of termination or expiration of this Agreement, you shall return or destroy (and provide written certification of destruction), at Search Engine Marketing' discretion, all copies of the Software, Documentation and any related materials. The following sections shall survive the termination for whatever reason of this Agreement: 2.3, 5.1, 5.2, 5.3, 5.4, 7.3, 9, and 11.
Nothing contained herein shall be construed as conferring upon you any right to use in advertising, publicity or other marketing activities, any name, trade name, trademark, or other designation of Search Engine Marketing or to refer to the existence hereof in any promotional activity without the express written consent of Search Engine Marketing.
9. Limitation of Liability
IN NO EVENT WILL Search Engine Marketing BE LIABLE TO YOU OR ANY THIRD-PARTY CLAIMANT FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM THE USE OF THE SOFTWARE OR ACCOMPANYING MATERIALS, INCLUDING LOSS OF DATA, LOSS OF SYSTEM AVAILABILITY, LOSS OF COMPUTER RUN TIME, LOST PROFITS, COST OF COVER HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Search Engine Marketing and its suppliers' cumulative liability to you or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed one thousand dollars ($1000.00 USD).
10. U.S. Government Restricted Rights.
If the Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the government's rights in Software and Documentation, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
You shall not assign or sublicense or otherwise transfer the rights or license granted hereunder, by agreement or by operation of law, without the prior written consent of Search Engine Marketing, and all assignments in violation of this prohibition shall be null and void. This Agreement shall not be construed to prohibit either Search Engine Marketing or you from entering into a similar agreement with any other party nor from independently developing, offering, selling or marketing materials, products or services which are similar to the materials, products or services provided hereunder. This Agreement is the entire agreement between the parties relating to the subject matter hereof and may only be modified in writing signed by both parties. This Agreement shall be governed by the laws of the State of California without reference to conflicts of law principles. If any provision or clause of this Agreement is held unenforceable, the remainder of this Agreement will continue in full force and effect.
Search Engine Marketing Corporation