THIS IS AN IMPORTANT LEGALLY BINDING AGREEMENT. This End User License Agreement (this "Agreement") is an agreement between you (either as an individual or the entity that you represent) ("you" or "Licensee") and Calcbench, Inc ("Calcbench") which governs your use of the "Licensed Software" which is comprised of the: (i) Calcbench Engine that is included as part of a web offering provided by a hosting provider or reseller that is separately agreeing to provide you with remote access to the Licensed Software ("Reseller") and (ii) related software components, which may include associated media, printed materials, and "online" or electronic, user manuals or other documentation ("Documentation"). The remote provision of the Licensed Software by the Reseller is referred to herein as the "Services". IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN DO NOT ACCESS OR USE THE LICENSED SOFTWARE. BY CLICKING THE "I ACCEPT" BUTTON AT THE END OF THIS AGREEMENT OR BY OTHERWISE INSTALLING, DOWNLOADING, COPYING, ACCESSING, ACCEPTING OR USING THE LICENSED SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU UNDERSTAND THEM, AND YOU AGREE TO BE LEGALLY BOUND BY THEM.
1. LICENSE GRANT, USE AND OWNERSHIP
(a) Limited License. Subject to the terms and conditions of this Agreement, Calcbench grants to Licensee a non-exclusive, non-transferable license (without the right to sublicense) (i) to remotely access and use the Licensed Software in accordance with the Documentation (as defined below) solely in connection with the Services, for Licensee’s internal business purposes, and solely for the number of servers for which Licensee has paid the applicable license fee to the Reseller and (ii) to use the Documentation provided with the Licensed Software in support of Licensee's authorized use of the Licensed Software. Licensee shall require all of its employees who utilize the Licensed Software to agree to the terms and conditions of this Agreement.
(b) Restrictions. Licensee shall not (i) use the Licensed Software in any manner which is not expressly authorized by this Agreement or which violates any applicable law; (ii) copy or reproduce the Licensed Software in whole or in part; (iii) modify, translate or create derivative works of the Licensed Software; (iv) reverse engineer, decompile, disassemble or otherwise reduce the Licensed Software to source code form; or (v) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes or otherwise transfer the Licensed Software or Licensee’s right to use the Licensed Software.
(c) Ownership. You acknowledge and agree that Calcbench owns and retains all right, title and interest in and to the License Software, all patents, copyrights, trademarks, trade secrets and other intellectual property rights therein and any derivative works thereof, subject only to the limited license expressly set forth in Section 1(a) hereof. Licensee does not acquire any other rights, express or implied, in the Licensed Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO CALCBENCH.
(d) Support Services. Calcbench is under no obligation to support the Licensed Software in any way or to provide any updates or upgrades to Licensee, except for any support packages that have been additionally purchased by the Licensee through the Reseller.
(e) Calcbench Not Responsible for Services . You acknowledge and agree that Calcbench is merely licensing the Licensed Software to you in connection with your use of the Licensed Software via the Services provided by the Reseller. Calcbench does not provide, and is not responsible for, the Services.
2. TERM AND TERMINATION.
Licensee's rights with respect to the Licensed Software are effective until terminated, either pursuant to the terms hereunder or upon the termination, or automatic expiration, of the agreed upon term of the subscription to the Services purchased by the Licensee, if any, from the Reseller. In addition to the specific termination provisions of this Agreement, Calcbench may terminate this Agreement at any time in the event of a material breach of the terms herein by Licensee, if Licensee shall fail to cure such material breach within fifteen (15) days of written notice of such breach from Calcbench or Reseller. The Agreement shall terminate automatically in the event that Reseller ceases to have the right to provide the Licensed Software as part of the Services. Upon any expiration or termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately cease using the Licensed Software, Documentation, and all other tangible items in Licensee's possession or control that are proprietary to or contain Confidential Information. The rights and obligations of the parties set forth in Sections 1(b), 1(c), 1(d), 1(e), 2, 3, 4, 5, 6 and 7 shall survive termination or expiration of this Agreement for any reason.
Licensee shall not use any Confidential Information (as defined below) for any purpose other than as expressly authorized under this Agreement. Licensee shall limit dissemination of Confidential Information to its employees who have a need to know such Confidential Information for purposes expressly authorized under this Agreement. In no event shall Licensee disclose any Confidential Information to any third party. Without limiting the foregoing, Licensee shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of Confidential Information.
"Confidential Information" shall mean all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, and software source documents relating to the Licensed Software, and other information provided by Calcbench, whether disclosed orally, in writing, or by examination or inspection, other than information which Licensee can demonstrate: (i) was already known to Licensee, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to Licensee; (iii) became generally available in the public domain after disclosure other than through any act or omission of Licensee; (iv) was subsequently lawfully disclosed to Licensee by a third party without any obligation of confidentiality; or (v) was independently developed by Licensee without use of or reference to any information or materials disclosed by Calcbench or its suppliers. Confidential Information shall include without limitation the Licensed Software and Documentation.
4. LIMITATION OF LIABILITY
IN NO EVENT SHALL CALCBENCH OR ITS SUPPLIERS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF CALCBENCH AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN ANY EVENT, THE LIABILITY OF CALCBENCH AND ITS SUPPLIERS FOR ANY LOSS OR DAMAGES DIRECTLY OR INDIRECTLY SUFFERED BY LICENSEE AS A RESULT OF THE USE OF THE LICENSED SOFTWARE OR ANY FAILURE, ACT, OMISSION OR BREACH OF THIS AGREEMENT BY CALCBENCH SHALL NOT EXCEED ONE DOLLAR ($1.00).
5. WARRANTY DISCLAIMER; NO HAZARDOUS APPLICATIONS
EXCEPT FOR ANY WARRANTIES SPECIFICALLY AGREED UPON IN WRITING OR TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED SOFTWARE IS PROVIDED "AS IS" AND CALCBENCH HAS NOT AND SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO THE CONDITION, MERCHANTABILITY, NON-INFRINGEMENT, DESIGN, OPERATION OR FITNESS FOR OR SATISFACTION IN REGARDS TO A PARTICULAR PURPOSE OF THE LICENSED SOFTWARE, DOCUMENTATION OR ANY UPDATES.
THE LICENSED SOFTWARE IS NOT DESIGNED OR AUTHORIZED FOR USE IN CRITICAL SAFETY OR OTHER APPLICATIONS WHERE ANY FAILURE MAY REASONABLY BE ANTICIPATED TO RESULT IN BODILY INJURY, LOSS OF LIFE, OR CATASTROPHIC DAMAGE TO PROPERTY. IF LICENSEE USES THE LICENSED SOFTWARE IN ANY SUCH APPLICATIONS, LICENSEE ACKNOWLEDGES THAT SUCH USE IS AT LICENSEE’S SOLE RISK. LICENSEE WILL INDEMNIFY, DEFEND AND HOLD CALCBENCH AND ITS AUTHORIZED RESELLERS AND SUPPLIERS HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES AND COSTS ARISING OUT OF OR IN CONNECTION WITH SUCH USE.
6. OTHER PROVISIONS
(a) Governing Law. This Agreement, and all disputes arising out of or related thereto, shall be governed by and construed under the laws of the Commonwealth of Massachusetts excluding: (i) its conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. Licensee hereby irrevocably submits to the exclusive jurisdiction of the federal and state courts of the Middlesex County, Commonwealth of Massachusetts.
(b) Restricted Party. Licensee represents that it is not a Restricted Party, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other countries that may, from time to time, become subject to U.S. export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions; (2) on the U.S. Department of Commerce Denied Person’s List, Entity List, or Unverified List; U.S. Department of the Treasury list of Specially Designated Nationals and Blocked Persons; or U.S. Department of State List of Debarred Parties; (3) engaged in activities involving nuclear materials or weapons, missile or rocket technologies, or proliferation of chemical or biological weapons; or (4) affiliated with or a part of any non-U.S. military organization. If Licensee becomes a Restricted Person during the term of this Agreement, the Agreement shall terminate immediately without notice and Licensee shall have no further rights to use the Licensed Software.
(c) Waiver of Jury Trial. The parties hereby agree to waive their respective rights to a jury trial of any claim or cause of action related to or arising out of this Agreement. The scope of the waiver is intended to be all encompassing of any and all disputes that may be filed in any court and that relate to the subject matter herein, including without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims. The parties each acknowledge that the waiver is a material inducement for each party to enter into a business relationship, that each party has already relied on the waiver in entering into this Agreement and that each will continue to rely on the waiver in their related future dealings. Each party further warrants and represents that each has had the opportunity to have legal counsel review the waiver. The waiver is irrevocable, meaning that it may not be modified either orally or in writing, and the waiver shall apply to any subsequent amendments, renewals, supplements or modifications to this Agreement. In the event of litigation, this Agreement may be filed as written consent to a trial by court.
(d) Assignment. Licensee shall not assign this Agreement or any rights or obligations hereunder. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
(e) Export Regulations. Licensee understands that Calcbench is subject to regulation by the U.S. government and its agencies, which prohibit export or diversion of certain technical products and information to certain countries and individuals. Licensee warrants that it will comply in all respects with all export and re-export restrictions applicable to the technology and documentation provided hereunder.
(f) Modification; Severability. This is the entire agreement between the parties relating to the subject matter hereof and all other terms are rejected. No waiver or modification of this Agreement shall be valid unless in writing signed by each party. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any term or other breach hereof. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement shall remain in full force and effect.
(g) Entire Agreement. This Agreement, as it may be amended from time to time, sets forth the entire agreement between you and Calcbench with respect to its subject matter, and it supersedes all prior communications, understandings and agreements, as well as the terms and conditions set forth in or on any purchase order, acknowledgement form, check, or any other document or instrument you may issue to Calcbench or transmit in connection with your use of the Licensed Software.
(h) U.S. Government End User Purchasers . The Software and Documentation qualify as "commercial items," as that term is defined at Federal Acquisition Regulation ("FAR") (48 C.F.R.) 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which the Agreement may be incorporated, Customer may provide to Government end user or, if the Agreement is direct, Government end user will acquire, the Software and Documentation with only those rights set forth in the Agreement. Use of either the Software or Documentation or both constitutes agreement by the Government that the Software and Documentation are "commercial computer software" and "commercial computer software documentation," and constitutes acceptance of the rights and restrictions herein.
7. CONTACT INFORMATION
If you have any questions about this Agreement, or if you want to contact Calcbench for any reason, please direct all correspondence to:
902 Broadway, 6th Floor
New York, NY 10010
United States of America
or email us at: email@example.com