End user agreement for THESIS Rapid SCORM eLearning
See www.HunterStone.com for more info
SOFTWARE LICENSE AGREEMENT
This HunterStone Software License Agreement (the "Agreement") is a legal agreement between you (either an individual or an individual on behalf of your company) and HunterStone, Inc. ("HunterStone"), regarding HunterStone's Thesis Pro (trademark) software product, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation ("SOFTWARE PRODUCT"). By installing, copying, or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, do not install or use the SOFTWARE PRODUCT.
For and in consideration of the mutual covenants contained in this Agreement and with the intent of being legally bound, HunterStone and you ("the parties") agree as follows:
1. HunterStone hereby grants to you, and you accept, a perpetual, nonexclusive license (the "License") to use the HunterStone software (the "Software"), under the following terms and conditions.
2. You may use and display the Software for the number of users you have paid for. If you desire to use the Software for additional users, you must obtain an additional license for the copy(ies) of the Software to be used for each additional user.
You agree that if you acquire any replacement software, bug fixes, updates, upgrades, new releases or versions, other Software areas, or additional Software documentation from HunterStone in the future, that such software or materials shall be considered part of the Software and shall be subject to the terms and conditions herein.
This License is effective from the date on which you receive the Software, and shall continue in effect until terminated. You may terminate this Agreement with thirty (30) days written notice. This Agreement, and your right to use and display the Software, shall terminate immediately and without notice if you fail to observe any of the terms of this Agreement.
3. Upon termination of this Agreement, you agree to destroy the original and all copies, complete or partial, of the Software and all documentation and other materials associated therewith; delete the Software from your computer hard drives and libraries; and certify such destruction and deletion to HunterStone in writing within thirty (30) days. You are not required to delete the Software from backup tapes or disks you have made on a regular basis of your entire computer system provided that you will not access or use the Software encoded on such backups.
4. Beginning on the date of this Agreement, and as long as you have paid any applicable technical support fees ("Technical Support Fees"), HunterStone agrees: (a) to provide technical assistance in the installation, testing, and operation of the Software; (b) to maintain and support the Software such that it reasonably performs as specified in the documentation for the then current version of the Software; and (c) to provide whatever additional services are provided for under the applicable technical support services you have purchased. Such assistance shall be provided by telephone and email, or in any mutually agreed upon manner.
Maintenance for the Software provided by HunterStone in exchange for the Technical Support shall continue in force thereafter on an annual basis until you either: (a) cancel maintenance by providing written notice to HunterStone at least thirty (30) days prior to the expiration of the then current term; (b) fail to pay the applicable Technical Support Fees; or (c) otherwise materially breach this Agreement.
5. HunterStone warrants: (a) that it is the legal owner of the Software; (b) that it holds all right, title and interest in said Software; and (c) that the Software has been developed by HunterStone or that HunterStone currently is the owner of distribution rights for the Software. HunterStone further warrants to you that HunterStone has any and all necessary authority to enter into this Agreement.
6. HunterStone shall retain title to the Software. You agree that the Software and any copies of such Software or any part thereof, regardless of the form or media in which the original or copies may exist, are the sole and exclusive property of HunterStone. By accepting this License, you do not become the owner of the Software recorded on the media. All intellectual property rights in the Software and Software documentation are owned by HunterStone and are protected by United States and Canadian intellectual property laws (including patent, trademark and copyright laws), other applicable intellectual property laws, and international treaty provisions. HunterStone retains all rights not expressly granted.
7. You agree not to use the Software or Software documentation to the detriment of HunterStone in any manner. You agree not to provide or otherwise make available the Software to any person or company other than your own employees and authorized agents, and that you will take such steps as are necessary to restrain any unauthorized use. You further agree not to use the Software to process the work of or for any company other than your own company.
You agree not to sell, assign, distribute, loan, rent, lease, license or otherwise transfer the Software, any copy of the Software, or this Agreement. You further agree not to alter, merge, modify or adapt the Software in any way including reverse engineering, disassembling, decompiling, or porting the Software.
8. You acknowledge that the Software, including its code, authorization codes, logic, and structure, contains valuable trade secrets belonging to HunterStone. You shall keep in confidence and not disclose to any third party or use for the benefit of any party other than HunterStone, the confidential and proprietary Software of HunterStone which is or has been disclosed to you. Such Software shall be examined by and disclosed only to your personnel and your authorized agents who may require such information in the course of their duties. Accordingly, you agree to hold all such Software in strictest confidence, not to reproduce any of the Software, not to use such information other than for the performance of the Software, and to cause any of your employees or subcontractors to whom such information is transmitted to be bound to the same obligation of confidentiality to which you are bound. In the event of any violation of this provision, HunterStone shall be entitled to preliminary and permanent injunctive relief as well as an equitable accounting of all profits or benefits arising out of such violation, which remedy shall be in addition to any other rights or remedies to which HunterStone may be entitled.
The requirement of confidential treatment shall not apply:
(a) to such Software and Software documentation that was in the public domain prior to your receipt of same hereunder, or has subsequently, through no fault of yours, become part of the public domain by publication or otherwise;
(b) to such Software and Software documentation that was rightfully in your possession prior to your receipt hereunder, and was not acquired directly or indirectly from HunterStone;
(c) to any such Software and Software documentation that is independently developed by you;
(d) to such Software and Software documentation you receive from a third party as to which you reasonably believe you have no obligation of secrecy; or
(e) to such Software or Software documentation which consists solely of generalized data processing ideas, concepts, know-how or techniques.
9. You may make backup copies of the Software, but the original copy of the Software and all backup copies may not leave your possession, except for those backup copies that are customarily stored on the premises of a third party for safekeeping purposes. The HunterStone copyright notice appearing on your original copy of the Software must be placed on all copies of the Software that you make. You may not make any copies of the Software documentation without the prior written approval of HunterStone.
10. Neither party shall be responsible for delays or failures in performance resulting from acts beyond the control of such party. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, power failures, earthquakes or other disasters.
11. EXCEPT AS SET FORTH IN PARAGRAPH 5 ABOVE, HUNTERSTONE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES RELATING TO THE USE OF THE SOFTWARE PRODUCT(S). YOU UNDERSTAND AND AGREE THAT HUNTERSTONE IS PROVIDING THE SOFTWARE PRODUCT(S) TO YOU ON AN "AS IS" BASIS AND, EXCEPT AS SET FORTH IN PARAGRAPH 5 ABOVE, HUNTERSTONE MAKES NO WARRANTY, REPRESENTATION, PROMISE OR GUARANTEE, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, THE DOCUMENTATION OR ANY RELATED TECHNICAL SUPPORT, INCLUDING THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12. You agree to defend, indemnify and hold harmless HunterStone from and against each and every demand, claim, loss, liability, or damage of any kind, whether in tort or contract, including actual attorney's fees, incurred by reason of or in connection with your use of the Software, other than injury or damage caused by copyright infringement. You also agree to indemnify HunterStone for any claim against HunterStone based on your use or combination of any of the Software with any other software not provided by HunterStone, or on your modification or unauthorized use of any of the Software. In no event shall HunterStone's liability exceed the amount you have paid for the Software, exclusive of any shipping, installation, training, consultation, maintenance and support fees.
HunterStone agrees to defend, indemnify and hold you harmless from any loss, liability, claim, suit, action, cost, judgement, final judgement, expense, or damages (including reasonable attorney fees) resulting from the Software infringing the trade secrets, proprietary information, trademark, copyright, patent right, or confidential proprietary information of any third party. The foregoing indemnity obligations shall be contingent upon the following:
(a) You shall give prompt written notice to HunterStone of any claim, demand or action for which it is aware that indemnity is sought;
(b) Both parties shall fully cooperate in the defense or settlement of any such claim, demand or action. You have the right to representation by your own counsel at your own expense. If the terms of the Agreement are enforced by litigation the prevailing party is entitled to collect its reasonable attorney's fees and other costs incurred from the non prevailing party; and
(c) The parties to the Agreement shall obtain the prior written agreement of the other party concerning any settlement or proposal of settlement; such agreement shall not be unreasonably withheld.
Should any portion of the Software or its intended use become, or in HunterStone's opinion be likely to become, the subject of a claim for infringement of a patent, copyright, or other proprietary right, HunterStone shall procure for you the right to continue using the Software or shall replace or modify the Software without degradation to functionality to make it non infringing. If neither of the foregoing solutions is reasonably available, HunterStone shall refund the Software License Fee you have paid for the infringing Software.
13. The Software is "commercial computer software" within the meaning of DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software by the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. Contractor/Manufacturer is HunterStone, Inc., 10628 C Broad River Rd, Irmo, SC 29063.
14. This Agreement represents the entire, sole, and only agreement and understanding between the parties with respect to the Software. Any prior agreements, commitments or representations expressed or implied in proposals and discussions between the parties shall not be construed to be a part of this Agreement unless contained herein. This Agreement shall be governed by and construed in accordance with the laws of South Carolina, except that no conflict-of-laws provisions shall be invoked so as to use the laws of any other jurisdiction. The exclusive venue for all cases related to or arising out of this Agreement shall be the federal and state courts in Richland County, South Carolina, except that at the option of HunterStone an injunction proceeding may be brought in the state where you reside. If any of the provisions, or portions thereof, of this Agreement are invalid or unenforceable under the applicable statute or rule of law, the court shall reform this Agreement to include an enforceable term as close to the intent of the original term as possible or if such reformation is not possible the provision shall be struck and all other terms shall remain unchanged. If any legal action is brought by either party against the other party regarding the subject matter of this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief, reasonable attorney's fees and expenses as may be awarded by the court, together with all costs to collect the same.
15. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired.
16. The failure of either party at any time to require performance by the other of any provision of this Agreement shall in no way affect that party's right to enforce such provision, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision or any other provision.
17. Notwithstanding the expiration or termination of this Agreement, it is acknowledged and agreed that those rights and obligations which by their nature are intended to survive such expiration or earlier termination shall survive including, without limiting the foregoing, the following provisions: Paragraphs 5, 6, 7, 8, 11, and 12.