1. License. A. Subject to all
of the terms and conditions hereof, Viewer Central, Inc,. a Delaware
corporation (the "Licensor") hereby GRANTS to the end-user (the
"Licensee") a non-transferable License to use the software program
entitled Project Viewer 365 (the "Viewer"), in object code, for five years
(the "Term"), terminable as specified herein, which Licensee hereby
accepts (the "License"). Licensor may assign its rights under
this Agreement, and delegate its duties hereunder, to any of its affiliates.
Licensee acknowledges that it has no right to modify the Project without
Licensor's prior written consent.
2. Location and Use of Software. The
Project shall be used by Licensee only on one computer (per seat license).
The Project shall be used only for the conduct and operation of
Licensee's own business, for the benefit of Licensee and its customers.
Licensee shall under no circumstances assign or attempt to sublicense the
License to any other person, and any attempt to do so would constitute a
material breach of this Agreement.
3. Copies. No copying of the Project
is permitted except for one back-up copy.
4. Consideration. The royalties for
this License are set forth in the check-out cart on the site.
5. Non-Disclosure, Confidentiality.
A. The Project, and any future permitted modifications, changes,
enhancements, upgrades, revisions, or additions made to the Project, whether
made or installed Licensor, Licensee, or a third party, are and shall be the
sole and exclusive property of Licensor, including all applicable Intellectual
Property rights inherent therein and appurtenant thereto. Licensee shall
not sell, transfer, publish, disclose, display or otherwise make available to
others any source code or object code, documentation, or other material
relating to the Project. Licensee shall assist Licensor in identifying and
preventing any use or disclosure of the source code or object code of the
Project, or of any portion thereof, or any of the algorithms or logic contained
therein. Without limitation of the foregoing, Licensee shall notify
Licensor immediately if Licensee learns or has reason to believe that any
person has violated, or intends to violate, the terms of this Agreement, or, if
not bound thereby, intends to infringe upon or dilute Licensor's Intellectual
Property in any way whatsoever; and Licensee will cooperate with Licensor in
seeking injunctive or other equitable relief in the name of Licensee or of
Licensor against any such person.
B. Licensee hereby acknowledges that the
Project contains proprietary Intellectual Property of Licensor, and agrees to
maintain the confidentiality of the Project in a manner using at least as great
a degree of care as the manner used to maintain the confidentiality of
Licensee's own most secret and valuable information. Licensee hereby
acknowledges that the disclosure by Licensee or any of its employees or agents
of any aspect or portion of the Project, or any of the confidential information
referred to herein or any other information which ought to remain confidential,
would give rise to irreparable injury to Licensor, which is inadequately
compensable in damages. Accordingly, in order to prevent any disclosure
or dilution of Licensor's Intellectual Property, Licensor may seek or obtain
emergency injunctive relief.
C. All of the undertakings and obligations
relating to confidentiality and non-disclosure, whether contained in this
paragraph or elsewhere in this Agreement, and whether of Licensor or of
Licensee, shall survive the termination of this Agreement for any reason
6. Warranty. Licensor warrants that
the Project is operational and substantially free of material defects.
Licensor disclaims any other warranties, including any warranties that
might otherwise be implied at law, such as the implied warranties of
merchantability or of fitness for a particular purpose.
THE WARRANTY STATED ABOVE IS A LIMITED
WARRANTY, AND IS THE ONLY WARRANTY MADE BY LICENSOR TO LICENSEE. LICENSOR
DISCLAIMS, AND LICENSEE HEREBY EXPRESSLY WAIVES, ANY OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED. LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS
OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE, FOR ANY EXEMPLARY,
CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE ABOVE-STATED EXPRESS WARRANTY IS IN LIEU
OF ALL OTHER LIABILITIES OR OBLIGATIONS OF LICENSOR FOR DAMAGES THAT MIGHT
ARISE OUT OF, OR IN CONNECTION WITH, THE DEVELOPMENT, USE, OR PERFORMANCE OF
7. Termination. This Agreement shall
terminate at the end of the Term, unless the Parties agree to extend this Agreement,
or either party has previously terminated the Agreement for breach. Any
termination of this Agreement shall automatically, and without any further
action by Licensor, terminate and extinguish the License, whereupon, Licensor
shall have the right to take immediate possession of the Project, and all
copies thereof, wheresoever located, and all documentation thereto, without
notice or demand. Notwithstanding the foregoing, all provisions hereof
relating to confidentiality of the Project and dispute resolution shall survive
the termination of this Agreement.
8. Taxes. Licensee shall pay all
taxes, whether national or local, howsoever designated, which are levied or
imposed by reason of the transaction and future transactions contemplated
9. Binding Effect. This Agreement
shall inure to the benefit of, and shall be binding upon, each of the parties
hereto, their respective heirs, personal representatives, administrators,
successors and assigns.
10. Choice of Law. The validity,
interpretation, and enforcement of this Agreement, and all other instruments
and documents executed in connection with this transaction, shall be governed
by the laws of the Commonwealth of Massachusetts, excluding those laws relating
to the resolution of conflicts between laws of different jurisdictions.
Licensee hereby waives, in the case of any such action or proceeding
brought in state or federal courts in the Commonwealth of Massachusetts,
defenses based on venue, jurisdiction, or forum non conveniens. All parties
waive any right to raise, as a defense or otherwise, conflict of laws issues to
challenge the governing law identified in this Agreement.
11. Interpretation and Rules of
Construction; Definitions. The section and subsection headings and
captions contained in this Agreement are for reference purposes only, and shall
not affect in any way the meaning or interpretation of this Agreement.
Whenever the context shall require, all words herein in the masculine
gender shall be deemed to include the feminine or neuter genders, all singular
words shall include the plural, and plural words shall include the singular.
The use of the word "person" shall refer to all legal persons,
whether natural or created by statute or other legal process including, but not
limited to, any individual, corporation, partnership, association, joint-stock
company, trust, limitada, limited liability company or partnership,
unincorporated organization, or joint venture. The term "source
code" means such written rendition of software programs readable and
comprehensible by humans, and the term "object code" means such
rendition and compilation of software programs primarily readable by machines.
The term "Intellectual Property" shall include material protected
by copyright, trademark, servicemark, trade secrets and know-how, and design
and patent rights. Any term herein that appears to be used as a defined
term, but whose definition is missing from this Agreement, shall be defined in
accordance with the definitions in any of the related documents or schedules
12. Severability. If any provision of
this Agreement should be determined by a court of competent jurisdiction to be
invalid, illegal or unenforceable, then that determination will not affect or
impair the validity, legality, or enforceability of the remaining provisions
13. Attorneys' Fees. If any legal
proceeding is brought by a party to this Agreement to enforce its provisions,
or to seek remedy for any breach hereof, then the prevailing party shall be
entitled to receive its reasonable attorneys' fees and costs incurred in
connection with that legal proceeding (including any appellate proceedings)
from the other party.