THIS IS A LICENSE AGREEMENT ("AGREEMENT") BETWEEN EXEMPLER LLC. ("EXEMPLER") AND YOU ("USER"). PLEASE READ CAREFULLY. EXEMPLER AGREES TO GRANT TO USER A LICENSE ("LICENSE") TO USE THE TESTSECRETARY APPLICATION AND ITS SUPPORTING APPLICATIONS ("SOFTWARE") ACCORDING TO THIS AGREEMENT; PROVIDED, HOWEVER, USER MUST ACCEPT ALL TERMS IN THIS AGREEMENT. BY USING THE SOFTWARE, USER ACKNOWLEDGES THAT USER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT. IF USER DOES NOT AGREE TO ANY OF THE TERMS BELOW, EXEMPLER DOES NOT LICENSE THE SOFTWARE TO USER, AND USER MAY NOT USE THE SOFTWARE
1. LICENSE GRANT. Subject to the terms and restrictions set forth in this Agreement, Exempler grants User a non-exclusive, non-transferable license, to install and use only one copy of the software on a single computer.
2. OWNERSHIP. User acknowledges and agrees that all right, title, and interest in and to the Software, including associated intellectual property rights, are and shall remain with Exempler or its suppliers and User will not take any action to jeopardize, limit or interfere in any manner with Exempler's or its suppliers' ownership of or rights with respect to the Software. This License Agreement does not convey to User an interest in or to the Software (whether by license, ownership or otherwise), but only a limited right of use revocable in accordance with the terms of this License Agreement. Title and related rights in the content accessed through the Software are the property of the applicable content owner and are protected by applicable law. The license granted under this Agreement gives User no rights in or to such content.
3. RESTRICTIONS. User may not use, copy, modify, or transfer the Software, in whole or in part, except as expressly provided in this Agreement. Except for the foregoing license grant, this Agreement does not grant User any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the Software. No license is granted to User in the human readable code of the Software (source code). User may not reverse engineer, disassemble, decompile, modify or translate the Software, or otherwise attempt to derive the source code of the Software, or authorize any third party to do any of the foregoing. Any attempt to transfer any of the rights, duties or obligations hereunder is void. User may not rent, lease, loan, resell for profit, sublicense or distribute the Software, or any part thereof, or use the Software in a time-sharing arrangement or in any other unauthorized manner. Components of the Software may not be used except in conjunction with the Software. This license does not include any rights to any upgrades, updates or enhancements to the Software. Exempler shall have no obligation to maintain or provide access to any wireless service, Internet connection or access or proxy server by virtue of this Agreement or the User's purchase of Exempler products.
4. TERM/TERMINATION. This Agreement is effective until terminated. This Agreement will terminate immediately without notice to User upon the User's breach or failure to comply with any term or condition of this Agreement. Upon such termination, User agrees to destroy the Software and documentation together with all copies and merged portions in any form. Exempler reserves the right to modify or terminate this Agreement, or any of its services and/or product offerings at any time without notice to User. User may terminate this Agreement at any time by destroying the Software and documentation together with all copies and merged portions in any form. Upon termination, the License shall cease, and User shall promptly destroy, or return the Software to Exempler. The provisions of this Agreement which by their nature would continue beyond termination of this Agreement including, but not limited to, Sections 2, 3, and 5 through 14 shall survive termination of this Agreement.
5. EXPORT LAW ASSURANCE. User agrees and certifies that neither the Software nor any other technical data received from Exempler, nor the direct product thereof, will be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. If the Software has been rightfully obtained by User outside of the United States, User agrees that User will not re-export the Software nor any other technical data received from Exempler, nor the direct product thereof, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which User obtained the Software.
6. GOVERNMENT END USERS. If User is acquiring the Software on behalf of any unit or agency of the United States Government, the following provision applies. The Government agrees that the Software is delivered as Commercial Computer Software as defined in DFARS 252.227-7014 (June 1995) or as a commercial item as defined in FAR 2.101(a), and as such the Government is acquiring only "restricted rights" in the Software and its documentation as that term is defined in Clause 252.227-7013(c)(1) of the DFARS. Technical data is provided with limited rights only as provided in DFARS 252.227-7015 (Nov. 1995) or FAR 52.227-14 (June 1987), whichever is applicable.
7. DISCLAIMER OF WARRANTY ON SOFTWARE. User expressly acknowledges and agrees that use of the Software is at User's sole risk. The Software and related documentation are provided "AS IS" and without warranty of any kind and EXEMPLER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXEMPLER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET USER'S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY USER. FURTHERMORE, EXEMPLER DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EXEMPLER OR EXEMPLER'S AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, USER (AND NOT EXEMPLER OR EXEMPLER'S AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO USER.
8. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EXEMPLER, INCLUDING ITS AFFILIATES AND SUBSIDIARIES, OR THEIR RESPECITIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF ANY CLAIM RELATING TO OR IN CONNNECTION WITH THIS AGREEMENT INCLUDING, BUT NOT LIMITIED TO BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR THE USE, MISUSE OR INABILITY TO USE THE SOFTWARE OR RELATED DOCUMENTATION, EVEN IF EXEMPLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO USER. IN NO EVENT SHALL EXEMPLER'S TOTAL LIABILITY TO USER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) EXCEED THE AMOUNT PAID BY USER FOR THE SOFTWARE.
9. GOVERNING LAW. This License Agreement shall be construed and governed in accordance with the laws of the United States and the State of Kansas. Any suit brought with respect to this License Agreement may be brought only in state or federal court in Johnson County, Kansas. The parties hereby submit to the exclusive jurisdiction of, and waive any objections with respect to the exclusive jurisdiction of, such courts.
10. ASSIGNMENT. Neither this Agreement nor any rights or obligations of User hereunder may be assigned by User in whole or in part without the prior written approval of Exempler. Any assignment in derogation of the foregoing shall be null and void.
11. COSTS OF LITIGATION. If any action is brought by either party to this Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation.
12. SEVERABILITY. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
13. NO WAIVER. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
14. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding and complete and exclusive statement of the agreement between Exempler and User which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. This Agreement shall not be modified except by a subsequently dated written amendment or exhibit signed by both parties by their duly authorized representatives. Copyright � Exempler LLC and its related entities. All Rights Reserved.