Software License Agreement
BY INSTALLING, COPYING, OR OTHERWISE USING THIS SOFTWARE PRODUCT ("SOFTWARE"), WHICH INCLUDES THE COMPUTER SOFTWARE, ASSOCIATED MEDIA AND PRINTED MATERIALS, YOU ARE CONSENTING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT INSTALL THIS SOFTWARE, OR ANY PORTION OF IT, ON ANY COMPUTER, DISK, DISKETTE, SHARED NETWORK SYSTEM, OR ANY OTHER STORAGE MEDIUM.
The following terms shall have the meanings set forth below unless otherwise required by the context:
a. "Software" means the computer programs and documentation.
b. "Install" means placing the Software on a computer's hard disk, CD-ROM or other secondary storage device.
c. "Use" means (i) executing or loading the Software into computer RAM or other primary memory, and (ii) copying the Software for archival or emergency restart purposes.
2. Grant of License.
If you are installing the trial version of this product, Nogginware Corporation ("Nogginware") hereby grants you the following non-exclusive license:
a. You may use the accompanying Software free of charge for a period of 30 days for the sole purpose of evaluating the Software.
b. You may install this Software on as many computers as you wish provided that it is under the terms and conditions of this agreement, and provided that it is for the sole purpose of evaluating the Software.
c. You may freely distribute this product (in its entirety) to others for the sole purpose of evaluation, again, provided it is under the terms and conditions of this agreement.
d. If, after 30 days, you wish to continue using this Software, you are required to purchase a License from Nogginware, or one of its designated agents or resellers.
e. If, after 30 days, you do not wish to continue using this Software, you are required to remove this Software, in its entirety, from all computers on which it is installed.
f. This license does not grant you any right to any support, bug fix, enhancement or update.
If you are installing the licensed version of this product, Nogginware hereby grants you the following non-exclusive license:
a. You may install and use the server Software only on a single computer.
b. You may install and use the client Software on as many computers as you wish.
c. This License grants your rights to technical support, bug fixes, updates and enhancements to the Software for the duration of this License.
3. License Term.
This License is effective when executed by both parties and the License granted to the Software remains in force until Licensee stops using the Software or until Licensor terminates this License because of Licensee's failure to comply with any of its terms and conditions.
This License is effective unless terminated. This License will terminate immediately without notice from Nogginware if you fail to comply with any provision of this License. Upon termination you must destroy the Software and all copies thereof. You may terminate the License at any time by destroying the Software and all copies thereof.
5. Title to Software.
Title, ownership rights, and intellectual property rights in and to the Software shall remain with Nogginware. The Software is protected by the copyright laws of the United States and international copyright treaties. Title, ownership rights, and intellectual property rights in and to the content accessed through the Software is the property of the applicable content owner and may be protected by applicable copyright or other law. This license gives you no rights to such content. This Software is licensed, not sold. The Licensee will make no efforts to reverse engineer the Software, or make any modifications or enhancements without Licensor's express written consent.
6. Limited Warranty.
Nogginware warrants that, for a period of thirty (30) days from the date of this License, the Software will substantially conform to and perform substantially in accordance with Nogginware's published user documentation, and Nogginware will endeavor to correct any failure of the Licensed Software to so conform or perform; provided that a) Licensee gives Nogginware written notice of any such claimed failure to so conform or perform within said thirty (30) day period; and b) such failure to so conform or perform is not, in Nogginware's reasonable opinion, a result of any modification of or damage to the software or its operating environment or of Licensee's failure to operate the software in the proper hardware and software environment.
EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE LICENSED SOFTWARE IS FURNISHED BY NOGGINWARE AND ACCEPTED BY LICENSEE "AS IS," WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. NOGGINWARE DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL FAILURES OF THE LICENSED SOFTWARE TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH NOGGINWARE'S PUBLISHED USER DOCUMENTATION WILL BE CORRECTED. EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED SOFTWARE IS WITH LICENSEE.
7. Limitation of Remedies.
LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING WARRANTY SHALL BE THAT: (A) NOGGINWARE WILL ENDEAVOR TO CORRECT WITHIN A REASONABLE TIME ANY REPORTED FAILURE OF THE LICENSED SOFTWARE TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH NOGGINWARE'S PUBLISHED USER DOCUMENTATION, OR (B) IN THE EVENT THAT NOGGINWARE SHALL FAIL OR BE UNABLE FOR ANY REASON TO CORRECT ANY FAILURE OF THE LICENSED SOFTWARE TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH NOGGINWARE'S PUBLISHED USER DOCUMENTATION, LICENSEE MAY TERMINATE THIS LICENSE AS TO THE AFFECTED LICENSED SOFTWARE AND RETURN THE LICENSED SOFTWARE TO NOGGINWARE, AND NOGGINWARE WILL REFUND TO LICENSEE THE FULL AMOUNT OF THE LICENSE FEE PAID THEREFOR.
8. Limitation of Liability.
IN NO EVENT WILL NOGGINWARE BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED BY NOGGINWARE UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF NOGGINWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND THE AGGREGATE LIABILITY OF NOGGINWARE UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY NOGGINWARE UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY LICENSEE UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL OPERATE TO RELIEVE NOGGINWARE FROM LIABILITY FOR ITS OWN WILLFUL OR WANTON RECKLESSNESS OR INTENTIONAL TORTS.
9. Non-Waiver, Severability, Assignment and Binding Effect.
The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed. Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from this Agreement, and all other provisions shall remain in full force and effect. Nogginware may assign, delegate and/or otherwise transfer this Agreement or its rights and obligations hereunder to any person or entity which purchases or otherwise succeeds to substantially all of the assets of Nogginware. Licensee may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of Nogginware. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
10. Applicable Law.
This Agreement shall in all respects be governed by and interpreted, construed and enforced in accordance with the laws of the United States of America and the Commonwealth of Virginia. Any action between Nogginware and Licensee will be venued in a state or federal court situated within the Commonwealth of Virginia, and Licensee irrevocably submits itself to the personal jurisdiction of such courts for such purpose.
11. Entire Agreement.
This Agreement sets forth the entire agreement and understanding between Nogginware and Licensee regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. This Agreement may not be modified or amended except by a writing signed by the party against whom the same is sought to be enforced.
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