BY INSTALLING OR USING THE BRS WEBWEAVER SOFTWARE, YOU CONSENT ON BEHALF OF YOURSELF AND THE ENTITY YOU REPRESENT TO BE BOUND BY, AND BECOME A PARTY TO, THIS AGREEMENT AS THE "LICENSEE." IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT INSTALL OR USE THE SOFTWARE, AND YOU DO NOT BECOME A LICENSEE UNDER THIS AGREEMENT
1. LICENSE GRANT. Blaine R Southam, grants Licensee a free-of-charge, personal, non-exclusive, and non-transferable license to install and use the executable code version of BRS WebWeaver and any accompanying components, and documentation ( collectively, the "Product"), subject to Licensee's compliance with the terms and conditions of this Agreement. This license does not entitle Licensee to receive from Blaine R Southam hard-copy documentation, technical support, telephone assistance, or enhancements or updates to the Product.
2. LIMITATIONS ON USE. Except with Blaine R Southam's prior written consent or as otherwise expressly permitted in this Agreement, Licensee may not: (i) modify or create any derivative works of the Product; (ii) 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); (iii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Product; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product.
3. LICENSEE REPRESENTATIONS. Licensee represents and warrants that it has the legal capacity to enter into this Agreement, that it will use the Product only for lawful purposes and in accordance with this Agreement, and that it will not use the Product to violate any law, regulation or ordinance or any right of Blaine R Southam or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent.
4. TERMINATION. Should Licensee breach this Agreement, Licensee's right to use the Product shall terminate immediately and without notice. Licensee may also terminate this Agreement by simply discontinuing use of the Product. In the event of any termination of this Agreement, the restrictions on use set forth in Paragraph 2 ("Limitations on Use"), as well as Paragraphs 3 through 14 shall survive such termination and Licensee agrees to continue to be bound by those terms. Upon termination, Licensee shall destroy all copies of the Product.
5. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in the Product shall remain in Blaine R Southam and/or his suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Blaine R Southam's or his 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. All trademarks used in connection with the Product are owned by Blaine R Southam, his affiliates or his suppliers, and no license to use any such trademarks is provided hereunder. Title and related rights in the content accessed through the Product are the property of the applicable content owner and are protected by applicable law. The license granted under this Agreement gives Licensee no rights in or to such content.
6. USE AND AVAILABILITY OF OPEN SOURCE CODE. Portions of the Product use software components developed through various open source projects. The licenses and availability of source code for such components are specified in the copyright notice file delivered with this Product.
7. INDEMINIFICATION. Licensee agrees to indemnify, hold harmless, and at Blaine R Southam's request and his expense, to defend Blaine R Southam and his affiliates from any and all costs, damages and reasonable attorneys' fees resulting from any claim that Licensee's use of the Product has injured or otherwise violated any right of any third party or violates any law.
8. DISCLAIMER OF WARRANTY. THE PRODUCT IS PROVIDED FREE OF CHARGE AND ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT THE PRODUCT IS FREE OF DEFECTS, VIRUS FREE, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. LICENSOR AND HIS SUPPLIERS HAVE NO LIABILITY WITH RESPECT TO USE OF THE PRODUCT. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT, INCLUDING THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BLAINE R SOUTHAM, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS, AGENTS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN ANY CASE, THE BLAINE R SOUTHAM'S ENTIRE COLLECTIVE 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 BLAINE R SOUTHAM UNDER A SEPARATE SUPPORT AGREEMENT (IF ANY) AND REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR PRODUCT, AS DETERMINED AT BLAINE R SOUTHAM'S SOLE DISCRETION, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF BLAINE R SOUTHAM TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. ADDITIONALLY, THE BLAINE R SOUTHAM SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF: (I) CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT; OR (II) THE USE OF COMPONENTS BY THIRD PARTIES AND MADE AVAILABLE ON BLAINE R SOUTHAM'S WEBSITE FOR USE WITH THE PRODUCT.
10. EXPORT CONTROL. Licensee agrees to comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority, and not to export or re-export the Product or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary authorizations. For example, Licensee shall not export or re- export any commodities, software, or technical data received from Blaine R Southam, or any direct product of such commodities, software or technical data, to any proscribed country, party, or entity listed in the applicable laws, regulations, and rules of the U.S. Government unless properly authorized. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to his own export of the Product from the U.S.
11. HIGH RISK ACTIVITIES. The Product is not fault-tolerant and is not designed, manufactured or intended for use in environments in which his failure could lead directly to death, personal injury, or severe physical or environmental damage, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems ("High Risk Activities"). ACCORDINGLY, BLAINE R SOUTHAM AND HIS SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. LICENSEE AGREES THAT BLAINE R SOUTHAM AND HIS SUPPLIERS WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF THE PRODUCT IN SUCH APPLICATIONS.
12. INJUNCTIVE RELIEF. Licensee acknowledges and agrees that, notwithstanding any other provisions of this Agreement, any breach or threatened breach of this Agreement by Licensee shall cause Blaine R Southam irreparable damage for which recovery of money damages would be inadequate and that Blaine R Southam therefore may seek and obtain timely injunctive relief to protect his rights under this Agreement in addition to any and all other remedies available at law or in equity.
13. MISCELLANEOUS. (a) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the State of Colorado, U.S.A., excluding its conflict of law provisions. (b) Licensee expressly agrees that jurisdiction for any claim or dispute relating to or arising out of this Agreement resides in the courts of the State of Colorado and Licensee expressly consents to the exercise of personal jurisdiction therein. (c) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (d) If a court should hold any provision of this Agreement invalid or unenforceable, 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 shall remain in full force and effect. (e) 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. (f) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. Blaine R Southam may assign this Agreement to any entity at his sole discretion. (g) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.