BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE OR CLICKING "I ACCEPT" WHEN PROMPTED IN CONJUNCTION THEREWITH, YOU ("LICENSEE") ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ACCEPT ON BEHALF OF AND BIND THAT PERSON OR LEGAL ENTITY TO THESE TERMS.
SOFTWARE LICENSE AGREEMENT
CODESMITH TOOLS, LLC
In addition to the other definitions set forth herein, the following defined terms shall apply:
"Agreement" this License Agreement between CodeSmith Tools, LLC as Licensor and Licensee.
"Computer" any electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions;
"Intellectual Property Rights" all intellectual and industrial property rights including patents, know-how, moral rights, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade marks, rights to prevent passing off for unfair competition and copyright, database rights, topography rights and any other rights in any invention, discovery or process, in each case in the United States and all other countries in the world and together with all renewals and extensions;
"License" the rights granted to the Licensee in relation to the specific defined version of the Software under this Agreement. The Software is licensed, not sold, and no rights are granted other than those expressly set forth in this License;
"Licensee" (a) the person who installs the Software on a Computer for his own personal use; or (b) where the Software is installed onto a Computer on behalf of an employer, another person, or entity, the Licensee is the employer, other person or organization on whose behalf the Software has been installed;
"License Fee(s)" the fees payable by the Licensee to the Licensor, excluding all other relevant taxes where applicable, as detailed by the Licensor from time to time.
"Licensor" CodeSmith Tools, LLC, 17950 Preston Road, Suite 310, Dallas, Texas 75252;
"Software" CodeSmith SDK and any updates, variations or versions thereof, as developed and owned exclusively by Licensor;
Any references to "install", "installing" "installation" or "installed" in connection with the Software include the downloading of the Software from the Licensor's or any third party's remote server.
The headings to the clauses and Schedules of this License are for convenience only and will not affect its construction or interpretation.
Any reference to a "day" or a "Business Day" will mean a period of 24 hours running from midnight to midnight. Any reference to "month" means a calendar month, except any other consecutive, daily period from a date certain during one month until the same date certain the following month.
3. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
3.1 The Licensee's only right to use the Software is by virtue of this License and the Licensee acknowledges that all Intellectual Property Rights in or relating to the Software and all parts of the Software are and shall remain the exclusive property of, and shall be exclusively owned by, the Licensor.
3.2 The Licensee further acknowledges that all Intellectual Property Rights in or relating to any improvement, modification or adaptation of the Software arising directly or indirectly from the Licensee using the Software are and shall remain the exclusive property of, and shall be exclusively owned by, the Licensor. In furtherance thereof, Licensee agrees that it shall be deemed to have automatically assigned exclusive ownership of any and all improvements and modifications to the Software to Licensor, without the necessity of any separate document or written agreement.
3.3 The Licensee agrees that it shall not remove or alter any trademarks, copyright notices or similar proprietary devices, including without limitation any electronic watermarks or other identifiers, that may be incorporated in the Software or any copy of the Software.
4.1 Provided that the Licensee has paid the appropriate License Fees and subject to the requirements of this Section 4, including the right of the Licensor to terminate the License under this Agreement, the Licensor grants to the Licensee, in the country where the Software was downloaded, for the Term of this License (as defined in Section 8 herein) a limited, personal, non-exclusive, non-sub-licensable, non-assignable and non-transferable license to:
4.1.1 install the Software for the use of no more than one hundred (100) individual users on a server or individual Computer(s) owned, leased and/or controlled by the Licensee or its employer or organization for whom the Licensee has installed the Software for internal use (if Licensee desires for more than one hundred (100) users to use the Software, such shall be permitted only as specifically agreed in writing, by Licensor;
4.1.2 make one copy of the Software in machine readable form for normal operational security and back-up purposes provided that such copy is not installed on any Computer at any time when the original copy of the Software supplied to the Licensee is installed upon any Computer. This License will apply to such copy as it applies to the original copy of the Software installed by the Licensee. Such copy and the media on which it is stored will be the property of the Licensor and the Licensee shall ensure that such copy bears the Licensor's proprietary notice.
4.2 All rights not expressly granted to the Licensee under this License are reserved to the Licensor, and the Licensee agrees not to take or permit any action with respect to the Software that is not expressly authorized under this License. The Licensee has no right to use, incorporate into other products, copy, publish, display, modify, translate the Software or any modification, adaptation or copy of the Software or any part thereof, nor to decompile, reverse engineer, or disassemble the source code of the Software either in whole or in part, other than as expressly permitted under the License or applicable law.
4.3 If the Licensee breaches this Section, the License or rights granted by the License will automatically terminate.
4.4 The Software is licensed to the Licensee only. Except as permitted by this License, the Licensee may not rent, lease, sub-license, sell, assign or pledge the Software, on a temporary or permanent basis without the prior written consent of the Licensor.
4.6 The Licensee agrees that the Licensor shall have the right (where Licensor reasonably suspects that the terms of the License have not been complied with) without prior notice to enter the Licensee's premises to audit any Computer or electronic media onto which the Software, licensed materials or any adaptation, modification or copy of the Software, and/or licensed materials has been installed in order to verify compliance with this License.
5.1 The structure, organization and source code of the Software is the valuable trade secret and proprietary confidential information of the Licensor. The Licensee agrees not to provide or disclose any such confidential information in the Software to any third party.
5.2 The provisions of this Section will not apply to any information which is:
5.2.1 lawfully obtained free of any duty of confidentiality (otherwise than directly or indirectly from the Licensor); or
5.2.2 already in the Licensee's possession, provided that Licensee can show such possession from written records (other than as a result of a breach of this Section); or
5.2.3 which the Licensee can demonstrate is in the public domain; or
5.3 To the extent that any information is necessarily disclosed pursuant to a statutory or regulatory obligation or court order, such disclosure shall not be a breach of this Section.
6.1 The Software is provided "AS IS" with no representation, guarantee or warranty of any kind as to its functionality. All other terms, conditions and warranties expressed or implied whether statutorily or otherwise are hereby expressly excluded.
7. LIMITATION AND EXCLUSION OF LIABILITY
7.1 The Licensor does not exclude its liability (if any) to the Licensee for any matter for which it would be illegal for the Licensor to exclude or to attempt to exclude its liability;
7.2 THE LICENSOR MAKES NO EXPRESS WARRANTIES WITH RESPECT TO THE SOFTWARE AND THE LICENSOR HEREBY EXCLUDES TO THE FULLEST EXTENT PERMISSIBLE IN LAW, ALL CONDITIONS, WARRANTIES (INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) THAT THE SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS SET OUT IN THIS LICENSE, THE LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND SHOULD THE SOFTWARE PROVE DEFECTIVE, THE LICENSEE (AND NOT THE LICENSOR) ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
7.3 THE LICENSOR SHALL NOT BE LIABLE TO THE LICENSEE FOR ANY OF THE FOLLOWING TYPES OF LOSS OR DAMAGE ARISING UNDER OR IN RELATION TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, RESTITUTION OR OTHERWISE):
7.3.1 ANY LOSS OF PROFITS, BUSINESS, CONTRACTS, ANTICIPATED SAVINGS, GOODWILL, OR REVENUE, PUNITIVE OR EXEMPLARY DAMAGES, SPECIAL DAMAGES OF ANY TYPE; OR
7.3.2 ANY LOSS OR CORRUPTION OF DATA; OR
7.3.3 ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER, EVEN IF THE LICENSOR HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
7.4 THE LICENSOR'S AGGREGATE LIABILITY UNDER THIS LICENSE WHATSOEVER (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, RESTITUTION OR OTHERWISE) FOR ANY INJURY, DEATH, DAMAGE OR DIRECT LOSS HOWSOEVER CAUSED WILL BE LIMITED TO THE LICENSEE FEE PAID BY LICENSEE FOR THE SOFTWARE.
7.5 The Licensee acknowledges that the above provisions are reasonable and reflected in the price which would be higher without those provisions, and the Licensee will accept such risk.
8. TERM AND TERMINATION
8.1 This License shall commence upon the Licensee's acceptance of this License and shall continue for a term of one (1) year from the date of installation, during which term Licensee shall be entitled to receive free updates and bug-fixes. After the expiration of the one (1) year term, the License must be renewed with Licensor in order for Licensee to have the right to receive free updates and bug-fixes. Upgrades to and new versions of the Software shall be provided only in exchange for additional fees, if any, determined appropriate by Licensor.
8.2 This License will terminate automatically if the Licensee uninstalls the Software, fails to comply with any term or condition of this License or uninstalls and destroys or voluntarily returns the Software.
8.3 The Licensor may terminate this License immediately and without notice if it reasonably suspects that Licensee is using the Software for any purpose which contravenes the laws of the United States.
8.4 Upon termination of this License for any reason whatsoever, the Licensee must uninstall the Software and destroy, and upon request of the Licensor certify the destruction of, all copies of the Software including all components of it in the Licensee's possession.
8.5 The termination of this License howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued prior to termination.
8.6 Licensee is responsible for any and all activities that occur under its License, and Licensee agrees to notify Licensor immediately of any unauthorized use of your License or any other breach of security.
On termination of this License howsoever arising Section 3 (Ownership of Intellectual Property Rights), Section 5 (Confidentiality), Section 6 (Warranty), Section 7 (Limitation and Exclusion of Liability), Section 8 (Term and Termination), Section 9 (Licensee Indemnity for Misuse), Section 10 (Governing Law and Jurisdiction), Section 11 (compliance with Applicable Law) and Section 16 (Revision to Terms) will survive and remain in effect.
9. LICENSEE INDEMNIFICATION
9.1 Licensee agrees to indemnify, defend, and hold Licensor, its parents, subsidiaries, affiliates, officers and employees, harmless from and against any and all claims, demands, or damages, including reasonable attorneys' fees, asserted by any third party due to or arising out, either directly or indirectly, of the use of the Software, including but not limited to any claim that the use of the Software causes loss or damage whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise. The obligations set forth in this Section 9.1 shall survive the expiration and/or earlier termination of the License.
10. GOVERNING LAW AND JURISDICTION
10.1 The formation, existence, construction, performance, validity and all aspects whatsoever of this License, or of any term of this License, will be governed by the laws of the State of Texas.
10.2 The courts of the State of Texas will have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this License. The parties irrevocably agree that exclusive venue for any suit or claim brought under this License shall be in Dallas County, Texas. The Licensee irrevocably agrees that a judgment or order of any court referred to in this clause is conclusive and binding upon it and may be enforced against it in the courts of any other jurisdiction.
11. COMPLIANCE WITH APPLICABLE LAW
The Licensee acknowledges and agrees that notwithstanding the fact that this License is governed by the laws of the State of Texas, the Licensee may be subject to additional laws in other jurisdictions with respect to the Licensee’s use of the Software. The Licensee will comply with the laws of any jurisdiction that apply to the Software, including without limitation any applicable export laws or regulations.
If any clause or part of this License is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from this License and will be ineffective without, as far as is possible, modifying any other clause or part of this License and this will not affect any other provisions of this License which will remain in full force and effect.
13. NO WAIVER
No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
14. NO THIRD PARTY RIGHTS
The parties to this License do not intend that any of its terms will be enforceable by any person not a party to it and all rights of third parties are hereby excluded.
15. ENTIRE AGREEMENT
This License contains all the terms to which the parties have agreed in relation to the subject matter of this License and supersedes any prior written or oral agreements, representations or understandings between the parties in relation to such subject matter. A printed version of this License and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this License to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
16. REVISIONS TO TERMS
The Licensor reserves the right to revise the terms of this License without Licensee’s acceptance or notification. Licensee agrees that Licensor may update the terms of the License by updating the License on its website, or by notifying the Licensee by post or by email. The Licensee is advised to check this License periodically for notices concerning revisions. The Licensee’s continued use of the Software shall be deemed to constitute acceptance of any revised terms.
17. NO ASSIGNMENT
The Licensee may not assign the benefit (including any present, future or contingent interest or right to any sums or damages payable by either party under or in connection with this License) or delegate the burden of this License or hold this License on trust for any other person.
18. ACCEPTANCE OF LICENSE
The Licensee will be deemed to have accepted the terms of this License by installing the Software onto any Computer.