These Terms apply to any of the software developed by DotNetPark Ltd.
BY DOWNLOADING AND/OR USING SOFTWARE FROM OUR WEB SITE, THE INDIVIDUAL
OR ENTITY LICENSING THE PRODUCT ("LICENSEE") IS CONSENTING TO BE BOUND
BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT
AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE LICENSEE MUST NOT
INSTALL OR USE ANY OF THE SOFTWARE DEVELOPED BY DotNetPark Ltd.
1. LICENSE AGREEMENT. In this Agreement
"Licensor" shall mean DotNetPark Ltd. except under the following
circumstances: (i) if Licensee acquired the Product as a bundled
component of a third party product or service, then such third party
shall be Licensor; and (ii) if any third party software is included as
part of the default installation and no License is presented for
acceptance the first time that third party software is invoked, then
the use of that third party software shall be governed by this
Agreement, but the term "Licensor," with respect to such third party
software, shall mean the manufacturer of that software and not
DotNetPark Ltd. With the exception of the situation described in (ii)
above, the use of any included third party software product shall be
governed by the third party's License agreement and not by this
Agreement, whether that License agreement is presented for acceptance
the first time that the third party software is invoked, is included in
a file in electronic form, or is included in the package in printed
form. If more than one License agreement was provided for the Product,
and the terms vary, the order of precedence of those License agreements
is as follows: a signed agreement, a License agreement available for
review on the DotNetPark Ltd. website, a printed or electronic
agreement that states clearly that it supersedes other agreements, a
printed agreement provided with the Product, an electronic agreement
provided with the Product.
2. LICENSE GRANT. Licensor grants Licensee
a non-exclusive and non-transferable License to reproduce and use for
personal or internal business purposes. This License does not entitle
Licensee to receive from DotNetPark Ltd. hard-copy documentation,
telephone assistance, or updates to the Product unless a specific
Product has been purchased by the Licensee that clearly states
otherwise. Licensor warrants that it has the right to grant the
foregoing license free and clear of third party intellectual property
claims, and should any third party intellectual property claims arise
Licensor will defend and hold Licensee harmless from such claims.
3. RESTRICTIONS. Except as otherwise
expressly permitted in this Agreement, or in another Licensor agreement
to which Licensee is a party such as a distribution agreement, Licensee
may not: (i) decompile, disassemble, reverse engineer, or otherwise
attempt to derive the source code for the Product (except to the extent
applicable laws specifically prohibit such restriction); (ii)
redistribute, encumber, sell, rent, lease, sublicense, or otherwise
transfer rights to the Product; (iii) remove or alter any trademark,
logo, copyright or other proprietary notices, legends, symbols or
labels in the Product; or (iv) publish any results of benchmark tests
run on the Product to a third party without Licensor's prior written
consent.
4. FEES. Multiple copies of the product
will each require separate Licenses. If Licensee wishes to receive the
Product on media, there may be a charge for the media and for shipping
and handling. Licensee is responsible for any and all taxes.
5. TERMINATION. Without prejudice to any
other rights, Licensor may terminate this Agreement if Licensee
breaches any of its terms and conditions. Upon termination, Licensee
shall destroy all copies of the Product.
6. PROPRIETARY RIGHTS. Title, ownership
rights, and intellectual property rights in the Product shall remain in
DotNetPark Ltd. and/or its suppliers. Licensee acknowledges such
ownership and intellectual property rights and will not take any action
to jeopardize, limit or interfere in any manner with DotNetPark Ltd.'s
or its suppliers' ownership of or rights with respect to the Product.
The Product is protected by copyright and other intellectual property
laws and by international treaties. Title and related rights in the
content accessed through the Product is the property of the applicable
content owner and is protected by applicable law. The License granted
under this Agreement gives Licensee no rights to such content.
7. DISCLAIMER OF WARRANTY. THE PRODUCT IS
PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING
WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS,
MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE
ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE
BY LICENSEE. SHOULD THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT,
LICENSEE AND NOT LICENSOR OR ITS SUPPLIERS OR RESELLERS ASSUMES THE
ENTIRE COST OF ANY SERVICE AND REPAIR. IN ADDITION, THE SECURITY
MECHANISMS IMPLEMENTED BY THE PRODUCT HAVE INHERENT LIMITATIONS, AND
LICENSEE MUST DETERMINE THAT THE PRODUCT SUFFICIENTLY MEETS ITS
REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART
OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT
UNDER THIS DISCLAIMER.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS
SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE
THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND
ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE
POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY
(CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY
CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT
SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR
THIS LICENSE (IF ANY) AND FEES FOR SUPPORT OF THE PRODUCT RECEIVED BY
DotNetPark Ltd. UNDER A SEPARATE SUPPORT AGREEMENT (IF ANY), WITH THE
EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF
LICENSOR TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF
DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION
AND LIMITATION MAY NOT BE APPLICABLE. DotNetPark Ltd. IS NOT
RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY
LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR
ANY MATERIAL LINKED THROUGH SUCH CONTENT.
9. HIGH RISK ACTIVITIES. The Product is
not fault-tolerant and is not designed, manufactured or intended for
use or resale as on-line control equipment in hazardous environments
requiring fail-safe performance, such as in the operation of nuclear
facilities, aircraft navigation or communication systems, air traffic
control, direct life support machines, or weapons systems, in which the
failure of the Product could lead directly to death, personal injury,
or severe physical or environmental damage ("High Risk Activities").
Accordingly, Licensor and its suppliers specifically disclaim any
express or implied warranty of fitness for High Risk Activities.
Licensee agrees that Licensor and its suppliers will not be liable for
any claims or damages arising from the use of the Product in such
applications.
10. MISCELLANEOUS. (a) This Agreement
constitutes the entire agreement between the parties concerning the
subject matter hereof. (b) This Agreement may be amended only by a
writing signed by both parties. (f) If any provision in this Agreement
should be held illegal or unenforceable by a court having jurisdiction,
such provision shall be modified to the extent necessary to render it
enforceable without losing its intent, or severed from this Agreement
if no such modification is possible, and other provisions of this
Agreement shall remain in full force and effect. (g) The controlling
language of this Agreement is English. If Licensee has received a
translation into another language, it has been provided for Licensee's
convenience only. (h) A waiver by either party of any term or condition
of this Agreement or any breach thereof, in any one instance, shall not
waive such term or condition or any subsequent breach thereof. (i) The
provisions of this Agreement which require or contemplate performance
after the expiration or termination of this Agreement shall be
enforceable notwithstanding said expiration or termination. (j)
Licensee may not assign or otherwise transfer by operation of law or
otherwise this Agreement or any rights or obligations herein except in
the case of a merger or the sale of all or substantially all of
Licensee's assets to another entity. (k) This Agreement shall be
binding upon and shall inure to the benefit of the parties, their
successors and permitted assigns. (l) Neither party shall be in default
or be liable for any delay, failure in performance (excepting the
obligation to pay) or interruption of service resulting directly or
indirectly from any cause beyond its reasonable control. (m) The
relationship between Licensor and Licensee is that of independent
contractors and neither Licensee nor its agents shall have any
authority to bind Licensor in any way. (n) If any dispute arises under
this Agreement, the prevailing party shall be reimbursed by the other
party for any and all legal fees and costs associated therewith. (o) If
any DotNetPark Ltd. professional services are being provided, then such
professional services are provided pursuant to the terms of a separate
Professional Services Agreement between DotNetPark Ltd. and Licensee.
The parties acknowledge that such services are acquired independently
of the Product licensed hereunder, and that provision of such services
is not essential to the functionality of such Product. (p) The headings
to the sections of this Agreement are used for convenience only and
shall have no substantive meaning. (q) Licensor may use Licensee's name
in any customer reference list or in any press release issued by
Licensor regarding the licensing of the Product and/or provide
Licensee's name and the names of the Product licensed by Licensee to
third parties.
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