The Licensed Software is a web-based service staff management application developed by
Licensor and consists of web-based software, application hosting at Licensors
option, associated media, printed materials and on-line or electronic
License. Licensor hereby
grants to Licensee one non-exclusive, non-transferable license to use the Licensed
Software for a period of one year from the date of this Agreement ("Initial License
Term"). Annually, on the anniversary date of this Agreement, said license will
automatically renew for a period of one year ("License Term"). Failure to
terminate this Agreement prior to the start of a new License Term in accordance with
Section 6 hereunder automatically obligates Licensee to pay the full renewal fees
associated with the new License Term, as outlined in Section 3 hereunder.
License Fees. Except as
provided for by any Free Trial Offer, Licensee will pay Licensor an initial license fee
for the Initial License Term of the Licensed Software as provided for in Licensor's
invoice. Prior to the end of the Initial License Term and each subsequent License Term,
renewal license fees ("Renewal Fees") will be calculated at the current rates
determined by Licensor, at its sole option, and Licensor will provide Licensee an invoice
for Renewal Fees for renewal of the License Term. Licensee will pay Licensor Renewal Fees
in compliance with terms and conditions of this Agreement and in compliance with the terms
and conditions of the renewal invoice.
Licensor represents that the Licensed Software is the property of Licensor and contains
confidential information and trade secrets of Licensor. Licensee agrees to use the
Licensed Software only as provided in this Agreement and agrees not to make the Licensed
Software available to any third party without the written consent of Licensor. Licensee
may not rent, lease, loan, resell for profit, or distribute the Licensed Software, or any
part of the Licensed Software. Licensee may not reverse engineer, decompile, or
disassemble the Licensed Software. The obligations of this paragraph shall survive the
termination of this Agreement and shall apply to the Licensed Software regardless of its
incorporation by Licensee into any other programs not provided by Licensor. These
restrictions shall not apply to any Licensed Software which is or becomes part of the
public domain through no fault of Licensee or is in Licensee's possession before the
disclosure by Licensor.
Support of Licensed Software.
Licensor will provide Licensee with updates, bug fixes, builds or error corrections
(collectively, "Software Updates"). If Licensor, at its sole option, supplies
Software Updates to Licensee, such Software Updates will be considered part of the
Licensed Software, subject to the terms and conditions of this Agreement.
Termination. Licensor may
terminate this Agreement immediately without notice if Licensee fails to comply with any
of its provisions. Upon termination Licensee must destroy the Software and all copies
thereof. Licensee may terminate this Agreement only by written notice of cancellation and
destruction of Software and all copies thereof. Termination of this Agreement will not
release Licensee from its obligation to pay all outstanding fees incurred prior to
Licensors receipt of Licensees cancellation notice.
Ownership and Copyright.
All right, title and interest in and to the Licensed Software, the accompanying
documentation, and any copies of the Licensed Software are owned by Licensor. Any
invention, improvement, product, process, apparatus, work of authorship or design
conceived or resultant from the efforts of Licensor hereunder will be owned by Licensor.
The Licensed Software is protected by copyright laws and international treaty provisions.
UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
rights under this software may not be assigned by Licensee without Licensor's prior
written approval. Licensor may assign this Agreement, in which case this Agreement shall
be binding upon Licensors assignee.
Warranty Disclaimer, Limitation of
Remedies and Damages. LICENSEE RECOGNIZES THAT THE LICENSED SOFTWARE IS PROVIDED
BY LICENSOR ON AN AS-IS BASIS. NEITHER LICENSOR NOR ANY AFFILIATED COMPANY OF LICENSOR NOR
ANOVIAINC.COM SHALL HAVE ANY LIABILITY WHATSOEVER TO LICENSEE OR ANY OTHER PERSON
INCLUDING LICENSEE'S CUSTOMERS FOR OR ON ACCOUNT OF ANY INJURY, LOSS, OR DAMAGE, OF ANY
KIND OR NATURE SUSTAINED BY, OR ANY DAMAGE ASSESSED OR ASSERTED AGAINST, OR ANY OTHER
LIABILITY INCURRED BY OR IMPOSED UPON LICENSEE OR ANY OTHER PERSON, ARISING OUT OF OR IN
CONNECTION WITH OR RESULTING FROM THE PRODUCTION, USE OR SALE OF THE LICENSED SOFTWARE OR
ANY APPARATUS, PRODUCT, OR PROCESS OR ANY ADVERTISING OR OTHER PROMOTIONAL ACTIVITIES WITH
RESPECT TO ANY OF THE FOREGOING, AND LICENSEE SHALL HOLD LICENSOR, AND ANY AFFILIATED
COMPANY OF LICENSOR, HARMLESS IN THE EVENT LICENSOR, OR ANY AFFILIATED COMPANY OF
LICENSOR, IS HELD LIABLE. LICENSORS LIABILITY TO LICENSEE FOR ACTUAL DAMAGES FOR ANY CAUSE
WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO THE AMOUNT PAID
FOR THE SOFTWARE THAT CAUSED THE DAMAGES. NEITHER LICENSOR, NOR ANY OF ITS EMPLOYEES,
MAKES ANY WARRANTY, EXPRESS OR IMPLIED, OR ASSUMES ANY LEGAL LIABILITY OR RESPONSIBILITY
FOR THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY DATA, APPARATUS, PRODUCT, OR PROCESS
DISCLOSED, OR REPRESENTS THAT ITS USE WOULD NOT INFRINGE PRIVATELY OWNED RIGHTS.
General. This Agreement
constitutes the entire agreement between the parties with respect to the subject matter
hereof. This Agreement may not be amended or modified in any respect except by written
instruments signed by both parties. If any provision of this Agreement is held by a court
of competent jurisdiction to be contrary to law, that provision will be enforced to the
maximum extent permissible, and the remaining provisions of this Agreement will remain in
full force and effect.