End user agreement for ClearContext Professional
CLEARCONTEXT™ LICENSE AGREEMENT
IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INDICATING YOUR ACCEPTANCE OF THE TERMS OF THIS LICENSE AGREEMENT BY CHECKING THE BOX BELOW.
This License Agreement (the “Agreement”) is a legal agreement between you, either an individual or a single legal entity (“Licensee”), and ClearContext (“ClearContext”) that governs Licensee’s acquisition and use of the ClearContext™ Personal and/or Professional software and any accompanying documentation (the “Software”). Licensee must accept the terms of this Agreement before downloading, copying, or otherwise using the Software. By checking the box below indicating acceptance of the terms of this Agreement, or by downloading, copying, or otherwise using the Software, Licensee is indicating that Licensee has read and understood, and that Licensee assents to be bound by, the terms of this Agreement. If Licensee does not agree to the terms of the Agreement, do not check the box below and do not use the Software. If Licensee does not agree to the terms of the Agreement, Licensee is not granted any rights whatsoever in the Software and must permanently delete all copies of the Software in Licensee’s possession.
1. LICENSE GRANT. Subject to the terms of this Agreement, ClearContext grants to Licensee a personal, non-exclusive, non-transferable license, without the right to sublicense, to install and execute one (1) copy of the Software, in accordance with its documentation, on up to two (2) computers that are utilized to access Licensee’s email account(s). Licensee may download, install and use the ClearContext Professional Software free of charge on any computer during the 30 days immediately after the Software is installed (“Evaluation Period”). After the Evaluation Period, Licensee’s continued use of the ClearContext Professional Software will be subject to payment of all applicable fees as described in Section 4 below. Licensee may download, install and utilize at no charge the ClearContext Personal Software for their personal use, as set forth on ClearContext’s website at www.clearcontext.com or at a successor site.
2. RESTRICTIONS ON USE. Except as expressly permitted in Section 1 (License Grant) (if at all), Licensee may not (a) copy, translate, modify, create derivative works of, or otherwise use the Software or any part thereof, (b) distribute, sell, assign, pledge, sublicense, lease, loan, use for service bureau purposes, rent, or otherwise transfer the Software or any part thereof in any form to another person, (c) remove from the Software, or alter, any of the trademarks, trade names, logos, patent or copyright notices or other proprietary notices or markings, or add any other notices or markings to the Software. ClearContext does not grant to Licensee any express or implied licenses or rights to any enabling technologies or systems that may be necessary to use the Software.
3. OWNERSHIP. The Software is licensed, not sold, and Licensee agrees that the Software and all intellectual property and proprietary rights therein are owned by ClearContext. ClearContext reserves title and all right and interests in and to the Software not expressly granted to Licensee in Section 1 (License Grant), including without limitation all patent rights, copyrights, trademarks, trade names, trade secrets and other intellectual property and proprietary rights. There are no implied licenses under this Agreement, and all rights not expressly granted are reserved by ClearContext.
4. REGISTRATION. If Licensee uses the ClearContext Professional Software after the 30 day evaluation period, Licensee agrees to obtain a registered license from ClearContext and pay all applicable fees. Unless Licensee and ClearContext have entered into a separate agreement, fees shall be the then current fees set forth on ClearContext’s website at www.clearcontext.com, or at a successor site. Alternatively, after the 30 day evaluation period, Licensee may utilize at no charge the ClearContext Personal Software for their personal use, as set forth on ClearContext’s website at www.clearcontext.com or at a successor site.
5. BETA SOFTWARE. For versions of the software designated as a Beta version, Licensee agrees to terminate use of the software within 30 days of the official release date of the Software. In consideration for receiving a copy of the Software for testing, Licensee agrees to serve as a tester for the Software and will notify ClearContext of all problems and ideas for enhancements which come to Licensee's attention during the period of this Agreement, and hereby assigns to ClearContext all right, title and interest to such enhancements and all property rights therein including without limitation all patent, copyright, trade secret, trademark or other intellectual property rights. Software designated as a Beta version is prerelease code and is not at the level of performance or compatibility of a final, generally available product offering. Software may not operate correctly and may be substantially modified prior to first commercial shipment, or withdrawn.
7. NO WARRANTIES. THE SOFTWARE IS PROVIDED AND LICENSED TO LICENSEE “AS IS”. LICENSEE ASSUMES THE ENTIRE RISK AS TO, AND ACKNOWLEDGES THAT LICENSEE RELIES SOLELY AT LICENSEE’S OWN RISK ON, RESULTS AND PERFORMANCE ARISING OUT OF THE USE OF THE SOFTWARE. SHOULD THE SOFTWARE PROVE TO HAVE DEFECTS IN ANY WAY, LICENSEE ASSUMES THE ENTIRE COST OF ALL SERVICING, REPAIR OR CORRECTION ARISING IN CONNECTION WITH SUCH DEFECTS.
CLEARCONTEXT DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES AGAINST INTERFERENCE WITH LICENSEE’S ENJOYMENT OF THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, CLEARCONTEXT SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES THAT THE SOFTWARE, CLEARCONTEXT’S EFFORTS, OR ANY SYSTEM WITH WHICH LICENSEE WILL USE THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, FULFILL ANY OF LICENSEE’S PARTICULAR PURPOSES OR NEEDS, OR THAT THE OPERATION OF THE SOFTWARE OR WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE ASSUMES THE RESPONSIBILITY FOR THE SELECTION OF LICENSEE’S REQUIREMENTS, SOFTWARE, AND HARDWARE TO ACHIEVE LICENSEE’S INTENDED RESULTS. Some jurisdictions do not allow the disclaimer of implied warranties, so the above disclaimer may not apply to Licensee, in which case the duration of any such implied warranties is limited to thirty (30) days from the date the Software is first downloaded by Licensee. In case of breach of such implied warranties, ClearContext’s sole and exclusive obligation and liability and Licensee’s sole and exclusive remedy will be, at ClearContext’s sole discretion, to (i) repair, correct, or work around any defect; (ii) provide a replacement copy of the Software; or (iii) terminate this Agreement and issue Licensee a refund of any fees that Licensee may have paid ClearContext for the Software (if any).
8. LIMITATION OF LIABILITY. CLEARCONTEXT SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY INNACURACY OF THE E-MAIL PRIORITIZATION AND MANAGEMENT PROCESS. THIS INCLUDES, BUT IS NOT LIMITED TO, THE LOSS OF MAIL MESSAGES SENT TO LICENSEE. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL CLEARCONTEXT BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM LICENSEE’S USE OF THE SOFTWARE. CLEARCONTEXT’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY LICENSEE HEREUNDER IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF COMPANY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY.
9. INDEMNIFICATION. Licensee agrees to indemnify and hold ClearContext harmless from and against all damages, liabilities, losses, costs and expenses arising from or relating to Licensee’s use or misuse of the Software or Licensee’s breach of this Agreement.
10. TERM AND TERMINATION. The term of this Agreement will commence upon Licensee’s checking of the box to indicate acceptance of terms and will continue until terminated as specified in this Section 10 (Term and Termination). The license granted under this Agreement shall terminate 30 days following installation of the Software unless Licensee registers the Software and pays all applicable fees or the Licensee utilizes the ClearContext Personal product as described in Section 4 above. The license for Beta versions of the software will automatically terminate 30 days after the official release of the Software. The license will automatically terminate earlier if Licensee fails to comply with the limitations described herein. Licensee may terminate this Agreement any time by destroying all copies of the Software in Licensee’s possession and by discontinuing all use of the Software. ClearContext may terminate this Agreement and without prior notice take appropriate technical measures to effect such termination in the following cases: (a) Licensee fails to comply with the terms of this Agreement; (b) Licensee distributes the Software without prior authorization by ClearContext; or (c) Licensee’s use of the Software gives rise to any legal action against ClearContext or its officers, directors, employees or agents. Any termination by ClearContext pursuant to this Section 6 (Term and Termination) will be exercised without limiting any other rights or remedies of ClearContext. Upon termination of this Agreement, the license granted in Section 1 (License Grant) will terminate and Licensee must immediately destroy all copies of the Software in Licensee’s possession or control. Sections 2, 3, and 7 through 13 of this Agreement will survive termination.
11. U.S. GOVERNMENT USE. The Software is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, ClearContext provides the Software to U.S. Government end users only pursuant to the terms and conditions herein.
12. EXPORT CONTROL. Licensee agrees and acknowledges that the Software is subject to U.S. export control law, and Licensee will comply with all applicable laws and regulations in Licensee’s use of the Software under this Agreement, including without limitation all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including the Export Administration Regulations promulgated by the Bureau of Industry and Security (as codified in 15 C.F.R. Parts §§ 730-774). Without limiting the foregoing, Licensee expressly agrees not to export or re-export the Software in violation of such laws or regulations, or without all required licenses and authorizations.
13. MISCELLANEOUS. Nothing contained herein will be construed to create any agency, employment, partnership, principal-agent relationship, or other form of joint enterprise between the parties. No waiver or modification of the Agreement will be valid unless signed by each party. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof. The headings in this Agreement do not affect its interpretation. Licensee may not assign or transfer any of Licensee’s rights or obligations under this Agreement to a third party without the prior written consent of ClearContext. Any attempted assignment or transfer in violation of the foregoing will be void from the beginning. ClearContext may assign this Agreement without consent to any third party. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining provisions of this Agreement will remain in full force and effect. Notices to ClearContext must be sent to the following address, and will be deemed effective three (3) days after certified mailing, return receipt requested: ClearContext Corp, 185 Clara Street., Ste 102-A, San Francisco, CA 94107; notices to Licensee may be sent to Licensee’s e-mail address and will be deemed effective upon arrival at Licensee’s e-mail server. This Agreement is governed by the laws of the State of California without reference to conflict of laws principles that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and the parties irrevocably consent to the personal and exclusive jurisdiction and venue of these courts. This Agreement is the final, complete, and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written.