PURCHASE AND LICENSE AGREEMENT AND LIMITED WARRANTY
IMPORTANT! The SAbER Mountain Software, Materials, e-books and Documentation (the “Licensed Software” “Licensed Materials” “Licensed Documentation” and other products) You seek to download from SAbER Mountain’s web sites is licensed only on the condition that You agree to the terms and conditions set forth below.
PLEASE READ THE TERMS OF THIS LICENSE AGREEMENT AND LIMITED WARRANTY (THIS “AGREEMENT” OR “LICENSE”) CAREFULLY.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE CLICK ON THE BOX ON THIS PAGE LABELED “I DO NOT ACCEPT,” WHICH WILL RETURN YOU TO THE PREVIOUS WEB PAGE WITHOUT DOWNLOADING THE LICENSED MATERIALS.
The Licensed Software, Licensed Materials, Licensed Documentation, e-books that You are about to access were developed by SAbER Mountain, a corporation (“Licensor”) to create, publish and promote edifying materials such as books, e-books, CDs and DVDs. This Agreement sets forth the terms under which You, as an individual or entity authorized by Licensor (or, for entities, any employee You authorize to use the Licensed Software, Licensed Materials and Licensed Documentation) (“You”), may use the Licensed Materials.
Access to and use of the Licensed Software, Licensed Materials and Licensed Documentation is by permission of Licensor only, and only for applicants who accept this Agreement. Licensor may grant or withhold approval in its sole discretion. If Licensor approves You for use of the Licensed Software, Licensed Materials and Licensed Documentation, Licensor will issue user identification (the “User ID”) and a password (the “Password”) that will authorize Your access to the Licensed Materials for the term of this Agreement.
Based on the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, You and Licensor agree as follows:
1. NATURE OF AGREEMENT
This Agreement is a legal contract made between You and Licensor. This Agreement contains the terms and conditions that You must comply with if You wish to access and use the Licensed Software, Licensed Materials and Licensed Documentation.
2. OWNERSHIP OF LICENSED SOFTWARE, LICENSED MATERIALS AND LICENSED DOCUMENTATION AND COPIES
Subject to the rights granted to You under this Agreement, all right, title, and interest in and to the Licensed Software, Licensed Materials and Licensed Documentation are and shall remain at all times the sole and exclusive property of Licensor. Licensor owns the Licensed Software, Licensed Materials and Licensed Documentation and all copyright and other intellectual property rights therein, and this Agreement does not transfer to You any title to or any proprietary or intellectual property rights in or to the Licensed Software, Licensed Materials and Licensed Documentation, any updates or derivative works thereto, or any copyrights, patent rights, or trademarks embodied or used in connection therewith, except for the rights expressly granted in this Agreement. The Licensed Software, Licensed Materials and Licensed Documentation are protected by United States laws and international treaty provisions.
The Licensor retains ownership of the Licensed Software, Licensed Materials and Licensed Documentation and all subsequent copies of the Licensed Software, Licensed Materials and Licensed Documentation provided for in the Agreement, regardless of the form in which the copies may exist. This license is not a sale of the original Licensed Software, Licensed Materials and Licensed Documentation or any copies.
Licensor may use, sell, assign, transfer, and license copies of and rights in the Licensed Software, Licensed Materials and Licensed Documentation to third parties in Licensor’s discretion free from any claim of You.
The copyright, database rights and any other intellectual property rights in the programs and data which constitute this Licensed Software, Licensed Materials and Licensed Documentation product, together with the hard media on which they were supplied to You, are and remain the property of the Licensor.
Provided that You have paid the applicable license fee, the Licensor grants to You a limited, non-exclusive, non-assignable, non-sublicensable license for use of in connection with one domain name to:
3.1 Use and copy the Licensed Software, Licensed Materials and Licensed Documentation for use on any computer system owned, leased and/or controlled by You or any member of Your corporate group, which expression includes the Corporate Licensee, the Corporate Licensee’s majority-owned subsidiaries, any parent company having a majority-owned interest in the Corporate Licensee, and such parent’s majority-owned subsidiaries;
3.2 You may obtain a copy of this Licensed Software, Licensed Materials and Licensed Documentation either by downloading it remotely from our server or by copying it from an authorized diskette, CD-ROM or other media (‘hard media’).
3.3 You may make copies of the Licensed Materials for back-up, archival or other security purposes.
4. LICENSE RESTRICTIONS
4.1 You may not use, copy, modify or transfer the Licensed Software, Licensed Materials and Licensed Documentation or any copy, in whole or in part, including any print-out of all or part of any database, except as expressly provided for in this Agreement.
4.2 If You transfer possession of any copy of the Licensed Software, Licensed Materials and Licensed Documentation to another party except as provided above, this Agreement is automatically terminated.
4.3 You may not translate, reverse engineer, decompile, disassemble, enhance, modify, create derivative works based on the Licensed Software, Licensed Materials and Licensed Documentation, or otherwise change or supplement the Licensed Documentation, in whole or in part except as expressly permitted by this Agreement.
4.4 You may not vary, delete or obscure any notices of proprietary rights or any product identification or restrictions on or in the Licensed Software, Licensed Materials and Licensed Documentation.
5. NO TRANSFER OR ASSIGNMENT
The Licensed Software, Licensed Materials and Licensed Documentation are licensed only to You for use with one domain name. You may not rent, lease, sub-license, sell, assign, pledge, transfer or otherwise dispose of the Licensed Software, Licensed Materials and Licensed Documentation, or this Agreement in whole or in part on a temporary or permanent basis, without the prior written consent of the Licensor. This Agreement is binding on and shall inure to the benefit of the parties and their respective successors and permitted assigns.
You undertake to:
6.1 Ensure that, prior to use of the Licensed Software, Licensed Materials and Licensed Documentation by Your employees or agents, all such parties are notified of this Agreement and the terms of this Agreement;
6.2 Reproduce and include our copyright notice (or such other party’s copyright notice as specified on the Licensed Software, Licensed Materials and Licensed Documentation) on all and any copies of the Licensed Software, Licensed Materials and Licensed Documentation, including any partial copies of the Licensed Software, Licensed Materials and Licensed Documentation;
6.3 Hold all drawings, specifications, data (including object and source codes), Licensed Software, Licensed Materials and Licensed Documentation listings and all other information relating to the Licensed Software, Licensed Materials and Licensed Documentation confidential and not at any time, during this Agreement or after its expiry, disclose the same, whether directly or indirectly, to any third party without the Licensor’s consent.
7. LICENSE ACCEPTANCE PROCEDURE
By clicking on the two acceptance buttons which follow this Agreement (marked ‘do You accept these terms and conditions?’ and ‘are You sure that You wish to accept these terms and conditions?’), You indicate acceptance of this Agreement. Such acceptance is either on Your own behalf or on behalf of any corporate entity which employs You or which You represent (‘corporate licensee’). In this Agreement, ‘You’ includes both the reader and any corporate licensee.
8. LICENSE REJECTION PROCEDURE
You should read this Agreement carefully before clicking on the two acceptance buttons. If You do not accept these terms and conditions, You should click on the ‘reject’ button.
If You have already downloaded the Licensed Software, Licensed Materials and Licensed Documentation, You must reject or terminate You acceptance within 14 calendar days of receipt. Furthermore, You must immediately delete the Licensed Software, Licensed Materials and Licensed Documentation from Your computer and promptly return to the Licensor or a licensed reseller:
a) The CdRom or other media;
b) Any other items provided that are part of this product, including but not limited to the Licensed Software, Licensed Materials and Licensed Documentation; and
c) Your dated proof of purchase. Any money You paid to the Licensor or a licensor reseller for the Licensed Software, Licensed Materials and Licensed Documentation will be refunded, along with all costs of postage and packing.
9.1 EXTENT OF LIABILITY. Licensor warrants that, for a period of 60 calendar days after the date from the date of delivery to You (the “Warranty Period”), the Licensed Software and Licensed Materials will conform to the performance standards and specifications set forth in the Licensed Materials and Licensed Documentation if properly installed and used in the operating environment specified in such Documentation. Licensor does not warrant that the functions contained in the Licensed Software, Licensed Materials and Licensed Documentation will meet Your requirements or will operate in the combination that You select for use, or that the operation of the Licensed Software will be uninterrupted or error free, or that all defects in the Licensed Software will be corrected by Licensor. Licensor’s responsibility under this warranty shall be limited to correcting the portion of the Licensed Software that fails to perform substantially in accordance with the said specifications or, at You option, refunding the applicable license fees in which event You shall return all copies of the Licensed Software, Licensed Materials and Licensed Documentation. Licensor shall have no liability under the foregoing warranty if (a) You decompile, reverse engineer, or modifies the Licensed Software without Licensor’s prior written consent, (b) You fail to give Licensor written notice of the claimed breach of warranty, or (c) the failure to perform is caused in whole or in part by persons other than Licensor or by products, equipment, or computer programs not furnished by Licensor.
9.2 VIRUSES. Licensor warrants that, to the best of its knowledge, the Licensed Software when physically delivered under this Agreement does not contain programming code or instruction(s) constructed with the ability to damage, interfere with, or otherwise adversely affect computer programs, data files, or hardware (collectively “Viruses”). Licensor also warrants that it has exercised its best efforts to assure that Viruses have not been introduced into the Licensed Software while the Licensed Software was in its possession. Further, Licensor warrants that the Licensed Software shall not contain any disabling code that will activate on a predetermined date or that can be remotely activated by Licensor without Your prior written consent. In the event that it is determined that such a Virus or disabling code exists, Licensor shall, at Your option, immediately replace any portion(s) of the Licensed Software or Licensed Documentation that cannot be corrected or cured within a reasonable period of time or shall immediately reestablish the affected portion(s) of the Licensed Software or Licensed Documentation to be functionally equivalent to their performance prior to the introduction of the Virus or disabling code. Licensor shall further ensure that all Customers promptly obtain copies of any updated materials provided under this Section 6.2. If neither of the foregoing alternatives is reasonably available to Licensor, then You may terminate this Agreement immediately on written notice to Licensor, and Licensor shall refund to You any License Fees paid for the Licensed Software, Licensed Materials and Licensed Documentation.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS SECTION LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY
The Licensor’s entire liability and Your exclusive remedy shall be:
10.1 The replacement of any diskette not meeting the Licensor’s Warranty and which is returned to the Licensor together with dated proof of purchase; or
10.2 If, during the Warranty Period, the Licensor is unable to deliver a replacement diskette which is free of material defects, You may terminate this Agreement by returning the Licensed Software, Licensed Materials and Licensed Documentation to the Licensor and any money You paid to the Licensor for the Licensed Software, Licensed Materials and Licensed Documentation will be refunded, along with the cost of postage and packing.
11.1 INTELLECTUAL PROPERTY INDEMNITY. In the event that an action is filed in a court of competent jurisdiction alleging that Licensed Software, Licensed Materials and Licensed Documentation used within the scope of the License granted hereunder infringes any copyright, patent, trade secret, or similar proprietary right of any third party (“Infringement Action”), Licensor shall indemnify, defend, and hold You harmless from and against such Infringement Action and any and all costs, damages, penalties, and expenses, including reasonable attorney fees, finally awarded in actions attributable to such claim, provided that (a) You notify Licensor in writing of the existence of such Infringement Action within 10 days after You receive notice thereof, (b) Licensor has sole control of the defense of such Infringement Action and all related settlement negotiations, and (c) You provide all reasonable assistance and cooperation in such defense. Notwithstanding the foregoing, Licensor shall have no liability on account of any Infringement Action based on (1) the combination, operation, or use of the Licensed Software, Licensed Materials and Licensed Documentation with equipment, data, or programming not supplied by Licensor or (2) the use of Licensed Software, Licensed Materials and Licensed Documentation that has been modified or altered without prior written consent of Licensor. Should the Licensed Software, Licensed Materials and Licensed Documentation become, or in Licensor’s opinion be likely to become, the subject of a claim of infringement, Licensor either shall (at Licensor’s election) procure for You and its Customers the right to continue to use the Licensed Software, Licensed Materials and Licensed Documentation, or replace, or otherwise modify, the Licensed Software to make it noninfringing, provided that there is no material change in the functionality of the Licensed Software, Licensed Materials and Licensed Documentation. The indemnification provided in this Section shall constitute the entire liability of Licensor with respect to an Infringement Action.
11.2 LICENSOR INDEMNIFICATION. You shall indemnify, defend, and hold Licensor harmless from and against any and all demands, claims, or suits by any third party and any and all costs, damages, penalties, and expenses, including reasonable attorney fees, arising out of or in connection with the use of the Licensed Software, Licensed Materials and Licensed Documentation by You, its employees, agents, or invitees, except to the extent any such demand, claim, or suit arises out of or in connection with Licensor’s breach of its obligations hereunder.
11.3 CROSS INDEMNITY. In the event any negligent act or omission of a party or its employees, agents, or representatives causes or results in loss or damage to, or destruction of property of, the other party or third parties, or death or injury to any persons, then such party shall indemnify, defend, and hold the other party harmless from and against any and all claims, actions, damages, demands, liabilities, costs, and expenses, including reasonable attorney fees, resulting therefrom.
11.4 LIMITATION OF LIABILITY. In no event shall Licensor be liable to You or any third party, under this Agreement or through the use of the Licensed Software, Licensed Materials and Licensed Documentation, for any amounts representing loss of profits, loss of data, loss of business, or indirect, consequential, or punitive damages of You or such third party. Except as set forth in Section 9.
11.5 Licensor’s liability in contract, tort, or otherwise for direct damages to You or any third party arising from this Agreement or the use of the Licensed Software, Licensed Materials and Licensed Documentation shall be limited to credit for the amount of the applicable fees and royalties payable to Licensor under this Agreement.
11.6 SURVIVAL. The provisions of this Section shall survive the expiration or earlier termination of this Agreement.
All taxes and charges of any kind imposed by any national, federal, state, or local government with respect to the products, services, or other items covered by this Agreement, shall be collected and paid by You. The provisions of this Section shall survive the expiration or earlier termination of this Agreement.
13. YOUR STATUTORY RIGHTS
This license gives You specific legal rights and You may also have other rights that vary from country to country. Some jurisdictions do not allow the exclusion of implied warranties, or certain kinds of limitations or exclusions of liability, so the above limitations and exclusions may not apply to You. Other jurisdictions allow limitations and exclusions subject to certain conditions. In such a case the above limitations and exclusions shall apply to the fullest extent permitted by the laws of such applicable jurisdictions. If any part of the above limitations or exclusions is held to be void or unenforceable, such part shall be deemed to be deleted from this Agreement and the remainder of the limitation or exclusion shall continue in full force and effect. Any rights that You may have as a consumer (ie a purchaser for private as opposed to business, academic or government use) are not affected.
14. TERM AND TERMINATION
14.1 The license is effective until terminated. The term of this Agreement and the license grant herein shall commence on the date You agree to this Agreement and download the Licensed Software, Licensed Materials and Licensed Documentation.
14.2 You may terminate this Agreement at any time by promptly destroying all printed copies and delete all electronic copies of any documentation that You have downloaded, printed, or created relating to the Licensed Software, Licensed Materials and Licensed Documentation, and to ensure that no copies of any of the Licensed Software, Licensed Materials and Licensed Documentation screens, data, or other content remain archived or otherwise stored on Your computers.
14.3 This Agreement will also terminate automatically upon conditions set out elsewhere in this Agreement, upon the Licensor’s termination of this Agreement, or if You fail to comply with any term or condition of this Agreement or if You voluntarily return the Licensed Software, Licensed Materials and Licensed Documentation to us. You agree upon such termination to promptly destroy all printed copies and delete all electronic copies of any documentation that You have downloaded, printed, or created relating to the Licensed Software, Licensed Materials and Licensed Documentation, and to ensure that no copies of any of the Licensed Software, Licensed Materials and Licensed Documentation screens, data, or other content remain archived or otherwise stored on Your computers.
14.4 Notwithstanding termination, the provisions of Sections 8, 9, 10, 11 and 13 of this Agreement shall survive and continue to apply.
15. COMPLIANCE WITH LAWS
You agree to comply with all applicable federal, state, and local statutes, ordinances, rules, and regulations, including, without limitation, the rules and regulations under the U.S. Export Administration Act and the U.S. Foreign Corrupt Trade Practices Act, as the same may be amended from time to time. Without in any way limiting the foregoing, (a) You shall not export or otherwise remove any Licensed Software, Licensed Materials and Licensed Documentation from the United States, either directly or indirectly, without the consent of Licensor and without first obtaining any licenses or approvals as may be required from the U.S. Department of Commerce and any other applicable agency or department of the United States Government, and (b) You agrees that neither it, nor any officer, director, employee, or agent of it (1) shall pay or be instructed to pay or give anything of value, either directly or indirectly, to an official of any foreign government or any foreign political party for the purpose of influencing an act or decision in such person’s official capacity, or inducing such person to use such person’s influence with the foreign government in order to assist You in obtaining or retaining business for or with, or directing business to, any person, or (2) are at present or shall at any time during the term of this Agreement become an official, officer, or representative of a foreign country.
16.1 ENTIRE AGREEMENT. This Agreement constitutes the complete and exclusive statement of the Agreement between the Licensor and You with respect to the subject matter of this Agreement and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other communications between us relating to that subject matter. Except as specifically provided for herein, this Agreement may not be altered, amended, or modified except by an instrument in writing signed by a duly authorized representative of each party.
16.2 SEVERABILITY. If any provision of this Agreement is declared or found to be illegal, unenforceable, or void by a court of competent jurisdiction, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable, or void, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefore another provision that is legal and enforceable and achieves the same objective. If the remainder of this Agreement shall not be affected by such declaration or finding and is capable of substantial performance, then, each provision not so affected shall be enforced to the extent permitted by law.
16.3 WAIVER. The waiver, modification, or failure to insist by You on any of the provisions of this Agreement shall not void, waive, nor modify any of the other provisions nor be construed as a waiver or relinquishment of You’s right to performance in the future of any such provision.
16.4 HEADINGS. Headings used herein are for reference purposes only and neither limits nor amplifies the terms and conditions herein.
16.5 AUTHORITY. You represent and warrant that You have the full power and authority to enter into and perform this Agreement. You also represent and warrant that the person signing this Agreement on its behalf has been properly authorized and empowered to do so.
16.8 FORCE MAJEURE. If the performance of Licensor under this Agreement is prevented, hindered, or otherwise made impractical by reason of flood, strike, war, acts of government, or any other casualty or cause beyond the control of Licensor, then Licensor shall be excused from its performance to the extent and so long as it is prevented, hindered, or delayed by such event(s).
17. ACKNOWLEDGEMENT AND EXCLUSIVITY
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND LICENSOR, AND THAT IT SUPERSEDES ANY PROPOSAL, PRIOR AGREEMENT, OR UNDERSTANDING, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND LICENSOR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THIS AGREEMENT MAY NOT BE CHANGED, ALTERED, OR MODIFIED EXCEPT BY A WRITING SIGNED BY THE LICENSOR.
Should You have any questions concerning this Agreement You may contact us via our help desk at www.sabermountain.com.