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LICENSE GRANT.
Subject to the terms and conditions contained herein and payment of applicable license fees, wiTHinc, Inc. ("WI") hereby grants to you a perpetual, non- transferable, non-exclusive license to use the version(s) of the accompanying proprietary software product ("Software") and related documentation ("Documentation"), subject to the usage limits of your license(s).
For each license registered and fee paid, Licensee may install and run one copy of the Software on a single server, subject to the usage limits of that license. In connection with the license granted herein, Licensor shall license to you an authorization data string ("Key") for each license. Licensee agrees to not exceed the performance and usage levels provided by the licensed Key. Licensee further agrees to not modify the files or the collection of files ("Package") distributed by the Licensor. Title to each Key will remain with Licensor and Licensor may reclaim every KEY in the event of an uncured breach of this Agreement.
Without purchasing or registering for a license, you may install and run the Software for evaluation purposes only, with maximum limits 100 users in each of two distinct user databases for a period of 45 days to assess the Software's features and capabilities.
FEES.
License registration and a fee is required for each Software license. Each installation of the Software on a single server or on multiple servers will require a separate license. Each networked copy of the Software on a server will require a separate license; that is, each unique network address at which the Software runs and responds requires a separate license. Each license permits certain usage levels. To exceed those usage limits you must purchase a new license that permits the higher usage level.
The panFora Lite Software license requires registration, but has a no cost fee.
RESTRICTED USE.
The Software and the Package is protected by the copyright laws of the United States and international copyright treaties. You may not copy the Software, except for backup or archival purposes. Any such copy shall be subject to this Agreement and shall contain all of WI's notices regarding proprietary rights as contained in the Software WI originally provided to you. If you receive a first copy of the Software electronically and a second copy on media, the second copy may be used only for backup and archival purposes. This license does not grant you any right to any enhancement or update to the Software. Enhancements and updates, if available, may be obtained at WI's then current standard pricing, terms, and conditions.
TITLE.
Title, ownership rights, and intellectual property rights in and to the Software, Documentation and Package shall remain in WI and/or its suppliers. This Agreement does not include the right to sublicense the Software and may not be assigned (by operation of law or otherwise) or transferred without the prior written consent of WI. You agree not to attempt to decipher, decompile or disassemble the Software or develop derivative works of the Software or knowingly allow others to do so, except to the extent applicable laws specifically prohibit such restriction. You may not modify or create derivative works of the Software or the Package.
CONTENT.
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.
LIMITED WARRANTY.
WI warrants that for a period of ninety (90) days from the date of acquisition, the Software, if operated as directed, will substantially achieve the functionality described in the Documentation. WI does not warrant, however, that Licensee's use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure. In addition, the security mechanism implemented by the Software has inherent limitations and Licensee must determine that the software sufficiently meets Licensee's needs. WI also warrants that the media containing the Software, if provided by WI, is free from defects in material and workmanship and will so remain for ninety (90) days from the date Licensee acquires the Software. WI's sole liability for any breach of this warranty shall be, in WI's sole discretion: (i) to replace Licensee's defective media; or (ii) to advise Licensee how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (iii) if the above remedies are impracticable, to refund the license fee Licensee paid for the Software. Repaired, corrected, or replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software, or if longer, for thirty (30) days after the date (a) of shipment to Licensee of the repaired or replaced Software, or (b) WI advised Licensee how to operate the Software so as to achieve the functionality described in the Documentation. Only if Licensee informs WI of Licensee problem with the Software during the applicable warranty period and provide evidence of the date Licensee acquired the Software will WI be obligated to honor this warranty. THIS IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY WI. WI MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS, OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. NO WI DEALER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. If any modifications are made to the Software by you during the warranty period; if the media is subjected to accident, abuse, or improper use; or if you violate the terms of this Agreement, then this warranty shall immediately be terminated. This warranty shall not apply if the Software is used on or in conjunction with hardware or programs other than the unmodified version of hardware and programs with which the Software was designed to be used as described in the Documentation.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL WI OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, OR FOR ANY DAMAGES IN EXCESS OF WI'S LIST PRICE FOR A LICENSE TO THE SOFTWARE AND DOCUMENTATION, EVEN IF WI SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
EXPORT.
You may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations as follows:
None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U-S- Treasury Department's list of Specially Designated Nationals or the U-S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
TERMINATION.
Either party may terminate this Agreement immediately in the event of default by the other party. Upon any termination of this Agreement, you shall immediately discontinue the use of the Software and shall within ten (10) days return to WI all copies of the Software and Documentation. You may also terminate this Agreement at any time by destroying the Software and Documentation and all copies thereof. Your obligations to pay accrued charges and fees shall survive any termination of this Agreement.
MISCELLANEOUS.
This Agreement represents the complete and exclusive statement of the agreement concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU FOR THE SOFTWARE AND/OR DOCUMENTATION IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND NOT THOSE CONTAINED IN YOUR PURCHASE ORDER. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability (i) of such provision under other circumstances or (ii ) of the remaining provisions hereof under all circumstances. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed entirely within California, except as governed by Federal law. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
U.S. GOVERNMENT RESTRICTED RIGHTS.
Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(I)(it) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is wiTHinc, Inc., 619 Cornwallis Ln., Foster City, CA 94404.
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