END USER SOFTWARE LICENSE AGREEMENT
IMPORTANT – PLEASE READ CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING ANY PART OF THIS INTERACTIVE SOFTWARE PRODUCT. THIS IS A LEGAL DOCUMENT THAT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE PRODUCT. BY DOWNLOADING, INSTALLING OR USING THIS SOFTWARE, OR BY USING ANY PART OF IT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE LEGALLY BOUND BY ITS TERMS.
Bay Lakes Information Systems, LLC (“COMPANY”) will license this product to you, the licensee (“you” or “Licensee”) only if you accept all of the terms of this end user software license agreement (this “Agreement”). COMPANY provides its software and licenses its use either directly or through authorized dealers. You assume responsibility for the selection of software to achieve your intended results, and for the installation, use and results obtained from the software.
1. Grant of License. Subject to the terms of this Agreement, COMPANY hereby grants to you a non-exclusive and non-transferable license (without any right to sublicense) to install and use on authorized computers (i) the software program provided by COMPANY (the “Program”), (ii) the associated written documentation provided by COMPANY (the “Documentation”), and (iii) any updates, revisions or upgrades of the Program or the Documentation provided to you by COMPANY or its authorized reseller (each an “Update”) (the Program, the Documentation and any Update collectively the “Product”). If you receive replacement or backup media containing the Product, you may only use it to in fact replace the primary media and may not transfer the original media to any other individual or computer. All rights not expressly granted to you herein are hereby reserved by COMPANY.
2. Scope of Use. You may only install the Product on computers for use by no more than up to the number of rooms, condominiums, property or retail locations, marina slips for which you have paid the applicable fees for your internal business purposes. Your invoice or sales agreement for the licensing of the Product will specify the number of concurrent users, as appropriate, for which you are authorized under the License. In addition, you shall not, nor permit any party to: (i) use the Product for the benefit of any third party, including without limitation, in an outsourcing or timesharing arrangement, or in the operation of a service bureau; (ii) sell, lease, sublicense, distribute, or otherwise transfer the Product to any person, firm, or entity; or (iii) copy, modify, adapt, translate, decompile, disassemble create or attempt to create, by reverse engineering or otherwise, the source code from any object code supplied to you. Portions of the Product may not be used independently of the Product.
3. Ownership. This is a license agreement and NOT an agreement for sale. All worldwide Intellectual Property Rights that are embodied in or related to the Product are, and at all times shall remain, the sole and exclusive property of COMPANY, whether or not specifically recognized or protected under local laws. For purposes of this Agreement, the term “Intellectual Property Rights” means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral rights and similar rights. You may not delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed by COMPANY on or in the Product.
4. Limited Warranty, Remedies and Disclaimer of Warranty. COMPANY warrants that if a defect in the Interactive Software Product appears during Licensee’s use of the software product your sole and exclusive remedy and COMPANY’s sole liability under this warranty is the replacement or repair of the software product. Except for the foregoing express warranty, the Product is licensed to you on an “AS IS” basis without any additional warranty whatsoever. Services, training, support or maintenance is provided to you by COMPANY for a monthly maintenance fee. Special work or add on capabilities will be performed on a fee based charge. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, NOT EXPRESSLY STATED IN THIS SECTION 4, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF TITLE, INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S LIABILITY SHALL BE LIMITED IN THE AGGREGATE TO A REFUND OF THE PURCHASE PRICE OF THE PRODUCT THAT GAVE RISE TO THE CLAIM. IN NO EVENT SHALL COMPANY BE LIABLE FOR YOUR COST OF PROCURING SUBSTITUTE GOODS. Force Majeure: IN NO EVENT SHALL COMPANY BE LIABLE WITH RESPECT TO THE FAILURE OF ITS DUTIES AND OBLIGATIONS UNDER THIS AGREEMENT WHICH IS ATTRIBUTABLE TO ACTS OF GOD, WAR, TERRORISM, CONDITIONS OR EVENTS OF NATURE, CIVIL DISTURBANCES, WORK STOPPAGES, EQUIPMENT FAILURES, POWER FAILURES, FIRE OR OTHER SIMILAR EVENTS BEYOND ITS CONTROL.
6. Export Restrictions. You agree to comply at all times with the provisions of all applicable laws and regulations regarding export controls or technology transfer restrictions of any applicable jurisdiction, including without limitation those of the United States Departments of Commerce and State.
7. Government Rights. Products furnished to the United States or any state or local governments are provided on these commercial terms and conditions.
8. Indemnification. Licensee shall be liable to and shall indemnify and hold COMPANY, its employees, representatives, successors and permitted assigns harmless from and against any and all claims, demands by third parties, losses, liability, cost, damage and expense, including litigation expenses and reasonable attorneys’ fees and allocated costs for in-house legal services, to which COMPANY, its employees, representatives, successors and permitted assigns may be subjected or which it may incur in connection with any claims which arise from or out of or as the result of (i) Licensee’s breach of this Agreement, (ii) the performance by Licensee of its duties and obligations under this Agreement, (iii) the negligent or willful misconduct of Licensee, its officers, employees, agents and affiliates in the performance of their duties and obligations under this Agreement.
9. General Provisions. This Agreement and its license shall automatically terminate upon failure by you to comply with any of its terms. The COMPANY determines in its sole discretion that Licensee has violated or acted inconsistently with the letter or spirit of this Agreement. This Agreement will be governed by the laws in force in the state of WISCONSIN. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement may only be modified in a writing referencing this Agreement and duly signed by an authorized officer of COMPANY. This Agreement constitutes the entire agreement between you and COMPANY relating to the Product, and supersedes any prior purchase order, communications, advertising or representations concerning the Product.