This License Agreement is a legal agreement between
you (either an individual or a single entity, a "Licensee")
and Constantine Ventures, Inc. ("CV"). The following
terms and conditions shall govern any installation or use of the
Licensed Products referenced on this Site. Such Licensed Products
include without limitation computer software, associated media,
any printed materials and any online or electronic documentation.
1. License
A. Grant of License. CV grants to Licensee a non-assignable,
nontransferable, and non-exclusive license, during the Term (as
defined in Section 10 hereof), to use the Licensed Products solely
for its own internal use and benefit, subject to the terms and
conditions specified herein. No license is granted to Licensee
for any other purpose. None of the rights granted by CV hereunder
may be sold, assigned, distributed, transferred or sublicensed
to any other person, in any media (including electronic media),
without the prior written consent of CV.
B. Maintenance Releases, Upgrades and Support Services.
This Agreement does not of itself provide for the licensing or
provision of any Maintenance Releases or Upgrades with respect
to the Licensed Products, or the provision of any technical support,
maintenance or installation services on the part of CV. The license
of the Licensed Product and the payment of any license fees are
unrelated to and not conditioned upon the provision of any such
Releases or Upgrades or support services. The terms and conditions
by which any such Maintenance Releases or support services (if
any) are to be licensed or provided must be set forth in a separate
maintenance and support services agreement entered into between
Licensee and CV ("Support Services Agreement"). Provision
of any Upgrades are at the discretion of CV, may be subject to
additional license and fee terms, and are not included within
the scope of any Support Services Agreement unless CV and Licensee
expressly agree to the contrary therein.
2. Scope of Use
The Licensed Products are licensed for use only
by Licensee as specified on the Site. For the purpose of this
Agreement, "use" means loading Licensed Products into
RAM, a hard disk or other storage device. Except to the extent
otherwise expressly permitted by applicable law, Licensee shall
not attempt, nor permit others to attempt, to reverse compile,
decompile, disassemble or reverse engineer or otherwise attempt
to derive the program code for the Licensed Products, or from
other information made available by CV to Licensee.
3. Payment
In consideration of the license granted hereunder
by CV to Licensee, Licensee will pay to CV the License Fees specified
on the Site for the Licensed Products. Payment is due prior to
first use or installation and shall be made by credit card payment
to CV as specified in the payment terms section of the Site. All
sales are final; there are no refunds.
4. Title, Risk of Loss and Non-Transferability
As between the parties hereto, CV or its licensors
retains all right, title and interest in and to the Licensed Products,
including all copyright, trade secret, trademark and patent and
other intellectual property rights embodied therein, subject to
the terms of the license granted hereunder. All rights not expressly
granted hereunder by CV are reserved by CV or its licensors, and
all materials supplied to Licensee under this Agreement shall
remain the sole property of CV. After installation of Licensed
Products by Licensee, Licensee shall be solely responsible for
and bear all risk of loss thereon. The license to use Licensed
Products hereunder is personal to Licensee and solely for Licensee's
own internal use and benefit. Licensee shall not transfer, sublicense,
or deliver Licensed Products or such license to another location
or provide or otherwise make Licensed Products available to anyone
other than Licensee's personnel, including but not limited to
any service bureau or time share clients, unless Licensee shall
have obtained CV's prior written consent in each case. Any attempt
to sub-license, or transfer Licensed Products in violation of
the foregoing shall be void, of no effect, and be deemed a material
breach of this Agreement.
5. Non-Disclosure and Non-Reproduction of Proprietary
Information
A. Confidential Information. Licensee understands
and agrees that Licensed Products constitute confidential and
proprietary information of CV and/or its licensors that embodies
valuable trade secrets. Licensee agrees not to duplicate or otherwise
reproduce, directly or indirectly, said Licensed Products in whole
or in part or any materials relating thereof (except that Licensee
may make such limited number of copies of Licensed Products as
is necessary for archival or back-up purposes). Licensee agrees
to take all reasonable steps to ensure that no unauthorized persons
shall have access to Licensed Products and that all authorized
persons having access to said Licensed Products while in the possession
of such will adhere to all conditions stated in this Section.
B. Proprietary Notices. Licensee will not alter
or remove any copyright, trade secret, patent, proprietary and/or
legal notices contained on or in copies of the Licensed Products.
The existence of any such copyright notice on the Licensed Products
shall not be construed as an admission, or be deemed to create
a presumption, that publication of such materials has occurred.
C. Injunctive Relief. In the event of any unauthorized
disclosure of confidential information by Licensee, CV may elect
to terminate this Agreement as provided in Section 10 hereof.
Because unauthorized use or transfer of the License Products may
diminish substantially the value of such materials and may irrevocably
harm CV and/or its licensors, if Licensee breaches the provisions
of this Section 5.C., CV and/or its licensors will be entitled
to injunctive and/or other equitable relief, in addition to other
remedies afforded by law, without any requirement for the posting
of a bond.
6. Indemnification
Licensee agrees to indemnify, defend and hold harmless CV, its
affiliates and licensors and their respective officers, directors,
employees, agents, and contractors, (collectively the "Indemnified
Parties"), from and against any and all claims, suits, damages
and expenses (including without limitation reasonable attorney,
accountant and expert fees and related costs of investigation)
asserted against or incurred by any of the Indemnified Parties
that, directly or indirectly, arise out of, or relate to in any
manner, the use, misuse, or inability to use the Licensed Products
by Licensee or any of its officers, directors, employees, agents,
contractors and customers; provided Licensee is promptly notified
in writing of any such suit or claim against CV and further provided
that CV grants Licensee sole control of the defense and any related
settlement negotiations and cooperates with Licensee in the defense
of such claim.
7. Limitations of Liability
A. IN NO EVENT WILL CV BE LIABLE FOR ANY LOST REVENUE,
LOST PROFITS, DATA OR EQUIPMENT, OR FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES (HOWEVER CAUSED
AND REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF CV HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) WITH RESPECT TO THE
LICENSED PRODUCTS MADE AVAILABLE HEREUNDER TO LICENSEE TO THE
FULLEST EXTENT PERMISSIBLE BY LAW.
B. IN NO EVENT WILL CV'S LIABILITY FOR DAMAGES
WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF THIS
AGREEMENT EXCEED THE SUM OF ALL AMOUNTS PAID BY LICENSEE TO CV
UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY
PRECEDING THE DATE UPON WHICH THE FACTS UNDERLYING SUCH CLAIM
OR CAUSE OF ACTION FIRST ARISE.
C. LICENSEE ASSUMES THE ENTIRE RESPONSIBILITY FOR
THE SELECTION AND USE OF THE LICENSED PRODUCTS, FOR THE USE OF
THE OUTPUT THEREOF, AND FOR DECISIONS MADE AND ACTIONS TAKEN BASED
ON THE OUTPUT THEREOF. LICENSEE AGREES THAT WITH RESPECT TO ANY
LICENSED PRODUCTS DISTRIBUTED BY CV UNDER LICENSE FROM A THIRD
PARTY, THE BENEFIT OF THIS SECTION 7 SHALL EXTEND TO SUCH THIRD
PARTY LICENSOR.
D. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS
SECTION 7 WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY. THE AMOUNTS PAYABLE HEREUNDER REFLECTS
THIS ALLOCATION OF RISK BETWEEN THE PARTIES.
8. Disclaimers
CV IS FURNISHING THE LICENSED PRODUCTS ON AN "AS
IS" BASIS ONLY, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT
OR CONFORMANCE TO DESCRIPTION. IN PARTICULAR, CV DOES NOT WARRANT
THAT THE LICENSED PRODUCTS WILL BE FREE OF ERRORS OR THAT THEIR
USE WILL BE UNINTERRUPTED OR SUITABLE FOR THE LICENSEE'S BUSINESS
OR OPERATIONAL REQUIREMENTS.
9. Taxes and Duties
Unless Licensee provides CV with a copy of a valid
tax exemption certificate, in which case CV will exempt Licensee
in conformity with applicable law, Licensee shall pay or, upon
receipt of invoice from CV, shall reimburse CV for all sales,
use, property, customs, excise or other taxes (however designated
and whether foreign or domestic, but not including taxes based
upon CV's net income) imposed on Licensee, or required to be collected
by CV, or imposed on Licensed Products or the use thereof, irrespective
of whether included in any invoice sent to Licensee at any time
by CV.
10. Term and Termination
A. Term. This Agreement shall commence upon the
Effective Date and shall continue until the first anniversary
of the Effective Date (the "Initial Term"). Thereafter,
this Agreement may be renewed for an additional one year term
(a "Renewal Term") upon Licensee's payment of a renewal
license fee as set forth in the payment terms on the Site. The
Initial Term together with any Renewal Terms are collectively
referred to herein as the "Term".
B. Termination. Notwithstanding the foregoing,
CV shall have the right, exercisable at its sole discretion, to
terminate this Agreement immediately by written notice thereof
in the event of any breach of obligation by Licensee under Section
2 (Scope of Use) or Section 5 (Non-Disclosure and Non-Reproduction
of Proprietary Information).
C. Effects of Termination. Upon any termination
or expiration of this Agreement for any reason, all rights and
obligations of the parties under this Agreement shall cease except
for (i) the obligations of Licensee to pay to CV any license fees
or other amounts payable that have accrued prior to the effective
date of such termination or expiration, (ii) the rights and obligations
of the parties under any provision of this Agreement which, by
its expressly stated terms, is intended to survive the termination
of this Agreement for a specified period, which provision shall
survive such termination or expiration for such specified period.
11. General and Miscellaneous Provisions
A. Public Announcements. Licensee grants CV permission
to name Licensee as a customer. Licensee also grants CV permission
to name Licensee and use Licensee's logo on the CV Website, in
CV marketing or advertising material, and in any media coverage
related to CV, subject to the terms of Licensee's Trademark policy.
B. Governing Laws. This Agreement shall be governed
by, and construed in accordance with, the substantive laws of
the Commonwealth of Massachusetts, United States of America, without
regard to its principles of conflicts of laws. Licensee hereby
consents to the exclusive jurisdiction and venue of the courts
located in Boston, Massachusetts. The United Nations Convention
on Contracts for the International Sale of Goods shall not apply
to this Agreement.
C. Force Majeure. Neither party will be liable
for any failure, deficiency or delay in the performance of its
obligations (but excluding only obligations to make payments)
under this Agreement due to events or conditions beyond that party's
control if the party makes reasonable efforts to perform. In the
event of such a force majeure, the affected party will be entitled
to a reasonable extension of time for the performance of its obligations
under this Agreement.
D. Export Controls. The Licensed Products and technical
data delivered under this Agreement are subject to U.S. export
control laws and may be subject to export or import regulations
in other countries. Licensee agrees to comply strictly with all
such laws and regulations and acknowledges that it has the responsibility
to obtain such licenses to export, re-export or import as may
be required after delivery to Licensee. Licensee agrees to cooperate
fully with any official or unofficial audit or inspection that
relates to export controls. Licensee shall have sole responsibility
for obtaining any licenses and permits that are required by any
nation to possess or use the Licensed Products, and agrees to
indemnify, defend and hold harmless CV with respect to any claims
or causes of action that may arise as result of any breach by
Licensee of the foregoing obligation.
E. Notice to Government End-Users. The Software
and any accompanying documentation are provided with RESTRICTED
RIGHTS. Use, duplication, or disclosure by the U.S. Government
or its contractors is subject to restrictions as set forth in
subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013, or any successor regulation
or as set forth in the particular department or agency regulations
or rules which provide CV or its licensors with protection equivalent
to or greater than that clause.
F. Assignment. This Agreement shall be for the
benefit of, and binding on, the parties hereto and their respective
permitted successors and assigns. Neither party may assign this
Agreement, nor any interest herein may be assigned, in whole or
in part, without the prior written consent of the other, such
consent not to be unreasonably withheld, delayed or conditioned.
Notwithstanding the foregoing, this Agreement shall be assignable
without any condition of prior consent by CV to any of its affiliates
or to a third party acquirer or successor of CV, whether by sale
of stock, merger, sale of all or substantially all assets, recapitalization
or other business consolidation or combination. Any purported
assignment in violation of the foregoing shall be null and void.
G. Waiver. No provision of, right, power or privilege
under this Agreement shall be deemed to have been waived by any
act, delay, omission or acquiescence on the part of either party,
its agents, or employees, but only by an instrument in writing
signed by an authorized individual of the waiving party. No waiver
by either party of any breach or default of any provision of the
Agreement by the other party shall be effective as to any other
breach or default, whether of the same or any other provision
and whether occurring prior to, concurrent with, or subsequent
to the date of such waiver.
H. Severability. The invalidity, illegality or
unenforceability, in whole or in part, of any provision, term
or condition hereof shall not affect the validity and enforceability
of the remainder of such provision, term or condition or of any
other provision, term or condition, and, to the extent possible,
such invalid, illegal or unenforceable provision shall be replaced
by a provision most nearly reflecting the fundamental objectives
of the original provision.
I. Status of the Parties. Nothing in this Agreement
shall be construed to place CV and Licensee in a relationship
of agents, partners or joint venturers, and neither party shall
have the power to obligate or bind the other party in any manner
whatsoever without the prior written consent of the other.
J. Integration; Amendments. This Agreement,
including all Schedule(s) and Exhibit(s) hereto, constitute the
entire agreement between the parties with respect to the subject
matter of this Agreement and supersede all previous and contemporaneous
agreements and understandings, whether oral or written, between
the parties hereto with respect to the subject matter of this
Agreement. No change, modification or revision of this Agreement
shall be valid unless assented to in writing and signed by both
parties. In the event of any conflict between the terms and conditions
of this Agreement or any Schedule(s) or Exhibit(s) hereto and
Licensee's purchase order, if any, or any so-called shrink wrap
license affixed to any License Products, the conflicting terms
and conditions of this Agreement or its Schedule(s) and/or Exhibit(s)
hereto shall govern.
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