End-User License Agreement Terms and Conditions
THIS AGREEMENT ("AGREEMENT") CONTAINS THE TERMS AND CONDITIONS UPON WHICH LEXDYE GRANTS TO YOU A LIMITED NON-EXCLUSIVE LICENSE TO USE THE LEXDYE DEFINITION TRACKER SOFTWARE (AS FURTHER DEFINED BELOW, THE “SOFTWARE”) DURING THE LICENSE PERIOD SPECIFIED BELOW. THE TERMS AND CONDITIONS CONTAINED HEREIN CONSTITUTE A LEGAL AGREEMENT. READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT BETWEEN YOU AND LEXDYE WITH RESPECT TO THE USE OF THE SOFTWARE.
BY CLICKING THE "ACCEPT" OR "AGREE" BUTTON OR BY CLICKING THE CHECKMARK THAT YOU ACCEPT OR AGREE, OR BY ACCESSING, DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THIS AGREEMENT.
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT INSTALL, DOWNLOAD OR USE OR COPY THE SOFTWARE OR ANY PART THEREOF BUT MUST INSTEAD IMMEDIATELY DESTROY ALL FULL OR PARTIAL COPIES OF THE SOFTWARE IN YOUR POSSESSION OR UNDER YOUR CONTROL.
IF YOU ARE ENTERING INTO THIS AGREEMENT WITHIN THE SCOPE OF YOUR EMPLOYMENT OR AGENCY, THEN YOU WARRANT AND REPRESENT TO LEXDYE THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON YOUR EMPLOYER’S OR PRINCIPAL’S BEHALF AND THAT THIS AGREEMENT WILL ALSO BE BINDING UPON SUCH EMPLOYER OR PRINCIPAL. IN ADDITION, IF YOU ARE INSTALLING THE SOFTWARE ON A COMPUTER THAT IS NOT OWNED BY YOU, YOU ARE BOUND TO THE TERMS OF THIS AGREEMENT BOTH IN YOUR INDIVIDUAL CAPACITY AND AS AN AGENT OF THE OWNER OF THE COMPUTER, AND YOUR ACTIONS WILL BIND THE OWNER OF THE COMPUTER. YOU REPRESENT AND WARRANT TO LEXDYE THAT YOU HAVE THE CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON YOUR OWN BEHALF AS WELL AS ON BEHALF OF THE OWNER OF THE COMPUTER ON WHICH THE SOFTWARE IS BEING INSTALLED. FOR PURPOSES OF THIS AGREEMENT, THE "OWNER" OF A COMPUTER IS THE INDIVIDUAL OR LEGAL ENTITY THAT HAS LEGAL TITLE TO THE COMPUTER OR THAT HAS THE POSSESSORY INTEREST IN THE COMPUTER IF IT IS LEASED OR LOANED BY THE ACTUAL TITLE OWNER.
1. License Grant. Subject to the terms and conditions of this Agreement and your continued compliance with the terms and conditions of this Agreement, LexDye, Inc., a Delaware corporation, (“LexDye”) grants you and, if and only if you have purchased a Small Business License, the additional Authorized Users (as defined below), if any, (subject to the Authorized User Limitation (as defined below)), a limited, non-exclusive, non-transferable, non-sublicensable, personal license to install and use the Software (as further defined below) and any Update (as defined below), each in object code only, and related explanatory written or electronic materials supplied by LexDye (the “Documentation”) on one or more Computers (as defined below) only during the License Period (as that term is defined below) for your Internal Business Use (as defined below) only. You may not grant any sublicenses with respect to this license. You are not permitted to use, copy, transfer or distribute the Software in any manner not expressly licensed or authorized by this Agreement. You acknowledge and agree that ownership of the Software and all subsequent copies thereof regardless of the form or media is held exclusively by LexDye (except for the Reset Text Format utility, which is owned exclusively by ZipZapMac and (sub)licensed to you under this Agreement). The terms of this Agreement will govern any Updates provided by LexDye to you and installed by you on a Computer that replace and/or supplement the original Software, unless such Update is accompanied by a separate license in which case the terms of that license will govern.
2. Restrictions. Except as expressly authorized by this Agreement, you and your Authorized Users, if any, may not, and you may not allow or enable any other person or entity, including without limitation any other Authorized User, to, and you may not attempt to, and you may to allow or enable any other person or entity to,
(a) install or use the Software or any Update on a computer or server other than a Computer or allow access to the Software or any Update from a computer or server, other than a Computer, including by remote access;
(b) license, sublicense, market, distribute, sell, rent, lease, lend, redistribute, transfer, make available or accessible or disclose, the Software or any Update or the Documentation to any other person or entity other than Authorized Users;
(c) copy, duplicate or reproduce the Software or any Update or the Documentation or any component or data of any of the foregoing;
(d) modify, reverse engineer, decompile, disassemble, translate, transform or create derivative works of the Software or any Update or any component or data of any of the foregoing;
(e) discover or attempt to discover the source code of the Software or any Update or its structure, sequence or organization or any algorithms used, or disclose any of the foregoing to any other person or entity;
(f) transfer or assign this license to any other person or legal entity, and any such transfer or assignment shall be void;
(g) remove any product identification, trademark, copyright, patent or other notices or marking contained in or on the Software or any Update or any Documentation;
(h) publish or disclose to any other person or entity the results of any benchmarking or comparison of the features, functionalities or performance of the Software or any Update compared to any other software or system;
(i) rent the Software or any Update to any other person or entity, or offer use of the Software to any other person or entity through a service bureau or application service provider;
(j) manipulate the Software or any Computer or its operating system software or any clock of your Computer in order to extend the availability or use of the Software beyond the License Period;
(k) reverse engineer decompile, or disassemble the Software;
(l) discover, reverse engineer or copy any algorithms or methods or processes utilized by the Software;
(m) utilize the Software or any algorithm or process or method used by the Software to make any other software or computer program; or
(n) utilize the Software or any component or data of any of the foregoing to create any other database.
3. License Period. The "License Period" for the license granted hereunder shall be (i) 10 consecutive days from the day on which you were first sent an email from LexDye that contains the link to download the Software if you requested to use the Software for free for free trial use, or (ii) 365 consecutive days from the day on which you were first sent an email from LexDye that contains the link to download the Software if you purchased a license to use the Software and paid the corresponding license fee charged by LexDye for the Software.
4. License Fees; Trial Use. Use of the Software is not subject to a license fee during the applicable License Period if you requested to use the Software for free for a trial use. In that case, your use of the Software is limited to 10 consecutive days from the day on which you were first sent an email from LexDye that contains the link to download the Software. Otherwise, you will be required to, and you agree to, pay the applicable annual license fee as specified and charged by LexDye and set forth on the LexDye Web Site for using the Software for a period of 365 consecutive days from the day on which you were first sent an email from LexDye that contains the link to download the Software. All sales, use, and other taxes and charges which LexDye may be required to pay or collect with respect to the obligations covered by this Agreement shall also be charged to you, except as prohibited by law.
5. Authorized User Limitation. The license granted hereunder is limited to your use only, and the “Authorized User Limitation” shall be one (1) Authorized User only who shall be you, unless you have purchased a Small Business License. If you have purchased a Small Business License, the license granted hereunder is limited to five (5) Authorized Users, including you, and the “Authorized User Limitation” shall be up to five (5) Authorized Users only who shall include you. The number of Authorized Users who may use the Software at any time, whether concurrently or consecutively, during the License Period under the license granted hereunder shall not exceed the Authorized User Limitation.
6. Term and Termination. Unless terminated earlier as provided for herein, the term of this Agreement, including without limitation the license granted to you in this Agreement, is in effect from the day on which you were first sent an email from LexDye that contains the link to download the Software and automatically ends at the expiration of the applicable License Period, provided that notwithstanding the foregoing this Agreement, including without limitation the license granted herein, will terminate automatically if you breach, or fail to comply with, any of the terms, restrictions or obligations set forth in this Agreement, including without limitation if you fail to make any required payment when due. At termination or expiration of this Agreement you shall cease all use of the Software and destroy all full or partial copies of the Software. The provisions of Sections 2, 7, 8, 9, 10, 11, 15, 16, 18, 22 and 22 hereof shall survive the expiration or termination of this Agreement.
7. Ownership. The Software, all Updates and the Documentation are protected by copyright laws and international copyrights treaties, including without limitation United States copyright laws, and other intellectual property laws and treaties. The source code of the Software and all Updates and the organization and structure of the source code of the Software and all Updates and all databases that are part of or used by the Software and any Updates are trade secrets of LexDye (or, with respect to the Reset Text Format utility only, of ZipZapMac), which you shall maintain in strict confidence and not disclose to any other person or entity. LexDye owns and retains all right, title and interest in and to the Software, all Updates and the Documentation, including all copyrights, trade secret rights, trademarks and other intellectual property rights therein (except for the Reset Text Format utility which is owned by ZipZapMac and (sub)licensed to you under this Agreement). Your possession, installation, or use of the Software, any Update and any Documentation does not transfer to you any title to or ownership rights in the Software, any Update or the Documentation or any intellectual property in the Software, any Update or the Documentation, and you shall not acquire any rights to the Software, any Update and the Documentation except the limited use rights as expressly set forth in this Agreement.
8. Use of Name and Trademarks. You shall not use the name, trade names or trademarks of LexDye, including without limitation the word mark LEXDYE or the LexDye logo, in any advertising, promotional literature or any other material, whether in written, electronic or other form, distributed to any third party, except in the form provided by LexDye, and then solely for purposes of identifying the Software.
9. Automatic Expiration. The Software and each Update is designed to automatically cease operating at the end of the applicable License Period. The use of the Software shall be limited to the License Period only, unless terminated earlier pursuant to the terms of this Agreement, in which case all use of the Software shall immediate cease upon such earlier termination, and the Software will no longer function at the end of the License Period. You shall not, and you shall cause your Authorized Users not to and you shall not allow any other person or entity to, (i) tamper with the Software or the Computer on which the Software is installed or the Computer’s operating system software or clock or (ii) circumvent the automatic termination of the Software’s operation at the end of the License Period, including without limitation by resetting or modifying the Computer or its operating system software or the clock of the Computer on which the Software is installed such that the Computer or its clock does not reflect the actual date and time at the location of the Computer, in order to extend the operation and use of the Software beyond the License Period.
10. Exclusion of Warranties. THE SOFTWARE, ALL UPDATES AND THE DOCUMENTATION ARE PROVIDED TO YOU “AS IS”, AND ANY USE BY YOU OR ANY AUTHORIZED USER OF THE SOFTWARE, ANY UPDATES AND THE DOCUMENTATION AND ANY THIRD PARTY SOFTWARE (AS DEFINED BELOW) WILL BE AT YOU’RE AND SUCH AUTHORIZED USER’S SOLE RISK. LEXDYE MAKES NO WARRANTIES RELATING TO THE SOFTWARE, ANY UPDATES AND THE DOCUMENTATION AND ANY THIRD PARTY SOFTWARE AND EXPRESSLY DISCLAIMS (i) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AS WELL AS (ii) ALL EXPRESS WARRANTIES, INCLUDING WITHOUT LIMITATION AS MAY BE SET FORTH ON THE LEXDYE WEB SITE OR THE DOCUMENTATION. LexDye makes no representation and gives no warranty that the Software or any Update will detect or identify all defined or undefined terms in a contract, draft or other document or that the Software or any Update will identify or detect all uses or instances or non-uses of any defined or undefined term in contract, draft or other document. You acknowledge and agree that the Software and any Update do not replace an attorney or other human professional experienced and qualified in drafting a contract or legal document or any other human professional. LexDye makes no representation and gives no warranty that the Software or any Update will operate accurately and comprehensively. The foregoing provisions of this Section shall be enforceable to the maximum extent permitted by applicable law.
11. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LEXDYE OR ZIPZAPMAC BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR (1) LOSS OF REVEUE OR PROFITS, (2) LOSS OF DATA, (3) COSTS, LEGAL FEES, DAMAGES OR SETTLEMENT PAYMENTS RESULTING FROM LEGAL MALPRACTICE CLAIMS, NEGLIGENCE CLAIMS OR SIMILAR CLAIMS, (4) BUSINESS INTERRUPTON DAMAGES OR LOSSES, (5) LOSS OF FUTURE BUSINESS OR OPPORTUNITIES, (6) LOSS OF GOODWILL, OR (7) ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE OR ANY UPDATE OR ANY THIRD PARTY SOFTWARE (INCLUDING WITHOUT LIMITATION THROUGH USE OF THE SOFTWARE OR ANY UPDATE), HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILTY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF LEXDYE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LexDye assumes no liability or responsibility, and hereby expressly disclaims all responsibility or liability, for any errors in a contract, draft or other document, even if such contract draft or other document was reviewed or analyzed with the Software or any Update. In no event shall LexDye’s (or ZipZapMac’s) total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed $100.00. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
12. No Malicious Code; System Requirements. LexDye certifies that the Software and any Update do not contain Malicious Code (as defined below). You shall be responsible for procuring the necessary hardware, software, middleware, firmware and other equipment, together with the requisite licenses, to satisfy the technical requirements for use of the Software, including without limitation the necessary operating system software. The Software is licensed for use only with the operating system software specified on the LexDye Web Site with respect to the Software you have licensed.
13. Technical Support. LexDye shall have no obligation to provide any technical support or maintenance to you with respect to the Software or any Updates.
14. Software Updates. LexDye has not obligation to but may, in its discretion, provide you with one or more Update(s) to the Software during the License Period. The terms and provisions of this Agreement shall apply to each such Update.
15. Third Party Software. The Software may use the following third party software tool: The Reset Text Format utility, which is owned exclusively by ZipZapMac or its successors or assigns (the "Third Party Software"). The Third Party Software is installed separately from the Software on the Computer and may be activated by the Software from time to time. LexDye disclaims all liability and responsibility with respect to the use of the Third Party Software by you, including without limitation through your use of the Software or any Update. The provisions, disclaimers, limitations and exclusions of Sections 10 and 11 above shall also apply to the Third Party Software.
16. Governing Law. This Agreement is governed by the internal law of the State of Delaware, without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
17. Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions of this Agreement shall not in any way be affected or impaired.
18. Certification of Compliance. Upon request by LexDye, you shall (i) certify to LexDye in a signed writing that the use of the Software, any Update and the Documentation by you and your Authorized Users is and has been in material compliance with this Agreement or (ii) notify LexDye in writing if you cannot provider such certification. LexDye may make this request once during each period of three (3) consecutive months during the License Period and once within twelve (12) months from expiration of the License Period or earlier termination of this Agreement.
19. Entire Agreement; Amendments. This Agreement is the entire agreement between you and LexDye concerning the Software, all Updates and all Documentation and supersedes any other prior or contemporaneous agreements or communications with respect to the Software all Updates and all Documentation, whether written or oral. No provision of the LexDye Web Site shall modify or amend the terms of this Agreement. This Agreement may not be modified or amended except by a written amendment signed by a duly authorized representative of LexDye and you. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by LexDye or a duly authorized representative of LexDye. The President and Chairman of the Board of LexDye shall be the only authorized representatives of LexDye.
20. Publicity. During the License Period, LexDye may identify you and your employer and/or principal as a customer on the LexDye Web Site and LexDye’s marketing materials, including by using and displaying your or your employer’s or principal’s business name and logo for that purpose.
21. Responsibility for Authorized Users. If you are entering into this Agreement within the scope of your employment or agency, your employer or principal, as the case may be, shall be responsible for the compliance by you and your Authorized Users with your and their respective obligations under this Agreement, and any non-compliance by you or any such Authorized User with the terms of or obligations applicable to you or such Authorized User under this Agreement shall be deemed a breach of the Agreement by such employer or principal.
22. Defined Terms. In addition to the capitalized terms defined above and elsewhere in this Agreement, the following capitalized terms as used in this Agreement shall have the meanings set forth below:
“Authorized User” shall mean you and, if (and only if) you are entering into this Agreement within the scope of your employment or agency, any other employees or agents of your employer or principal.
“Computer” shall mean any tangible desktop computer, laptop computer or tablet computer on which the Software can be installed by storing the files comprising the Software locally on such computer, and if the Software is stored on a virtual desktop, such as, for example, a virtual desktop created by VMware Horizon View, each desktop computer, laptop computer or tablet computer that accesses such virtual desktop shall be deemed a “Computer,” provided that in each case you or your Authorized User has control over any such Computer and you are the Owner of each such Computer or , if you are entering into this Agreement within the scope of your employment or agency, your employer or principal is the Owner of each such Computer.
“Internal Business Use” shall mean the internal use of the Software and any Update for your internal business purposes that does not violate any restriction or other provision of this Agreement.
“LexDye Web Site” shall mean the Internet website accessible from the Uniform Resource Locator (URL) http://www.LexDye.com.
“Malicious Code” shall mean a computer virus, worm, or malware.
“Software” shall mean the LexDye Definition Tracker software published by LexDye, Inc. and available for licensing from the LexDye Web Site, as well as the Reset Text Format software tool which is published by ZipZapMac or its successors or assigns.
“Update” shall mean any updates, bug fixes, maintenance releases and the like, if any, to the Software (1) that do not contain new functionalities, (2) that LexDye designates as an “Update” to the Software and (3) that LexDye may, in its sole discretion, make generally available to all of its then-current licensees of the Software during the License Period.