THE HIGHLY TECHNICAL DOOHICKEY COMPANY
SOFTWARE LICENSE AGREEMENT
THE HIGHLY TECHNICAL DOOHICKEY COMPANY ("HTDC") IS WILLING TO LICENSE THE SOFTWARE AND RELATED DOCUMENTATION TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS IN THIS AGREEMENT. BY USING THE SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS, HTDC IS UNWILLING TO AND DOES NOT LICENSE THE SOFTWARE TO YOU. IF YOU DO NOT AGREE TO THESE TERMS YOU MUST NOT INSTALL OR USE THE SOFTWARE. ANY USE OF THE SOFTWARE BY YOU IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN.
1. LICENSE. Subject to the terms and conditions of this License Agreement, HTDC hereby grants you a nonexclusive license to install and use the Software in machine-readable form on a single personal computer, provided that if you are an individual, on one or more personal computers in your household or home office owned or controlled by you for use by yourself and immediate family members residing in the same household only. You may copy the Software only for backup purposes, provided that you reproduce all copyright and other proprietary notices that are on the original copy of the Software.
2. RESTRICTIONS. HTDC retains all right, title, and interest in and to the Software, and any rights not expressly granted to you herein are reserved by HTDC. You may not reverse engineer, disassemble, decompile, or translate the Software, or otherwise attempt to derive the source code of the Software, except to the extent (if at all) expressly permitted under any applicable law. If applicable law expressly permits such activities, any information so discovered or derived shall be deemed to be the confidential proprietary information of HTDC and must be promptly disclosed by you to HTDC. Any attempt to transfer any of the rights, duties or obligations hereunder is void. You may not rent, lease or loan the Software. You may not reproduce (except as expressly permitted under Section 1), distribute, publicly perform, publicly display, modify or create derivative works of or based on the Software.
3. TECHNICAL SUPPORT. Limited technical support (via email response or internet message boards) may be available for a limited period of time if you have paid for the Software but may be discontinued at the discretion of HTDC at any time.
4. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE (AND TECHNICAL SUPPORT, IF ANY) IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, HTDC AND ANY APPLICABLE LICENSORS (FOR THE PURPOSES OF SECTIONS 4, 5 AND 6, HTDC AND HTDC'S LICENSOR(S) SHALL BE COLLECTIVELY REFERRED TO AS HTDC) EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. HTDC DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, HTDC DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY HTDC OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
5. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL HTDC, ITS AFFILIATES OR THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF HTDC OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HTDC'S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTIONS (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT PAID BY YOU FOR THE SOFTWARE OR $10.
6. INDEMNITY. You agree to defend and indemnify HTDC against all any and all claims, losses, liabilities, damages, costs and expenses, including attorney's fees, which HTDC may incur as a result of or in connection with your breach of this Agreement.
7. TERM AND TERMINATION. This Agreement shall continue until terminated. You may terminate the Agreement at any time by deleting all copies of the Software and all related information. This Agreement terminates immediately and automatically, with or without notice, if you fail to comply with any provision hereof. Additionally, HTDC may at any time terminate this Agreement, without cause, upon notice to you. Upon termination you must delete or destroy all copies of the Software in your possession. Sections 2, 4 through 6, 8, 9, 12, 14 and 16 shall survive termination.
8. EXPORT. Licensee agrees and certifies that neither the Software nor any other technical data received from HTDC, nor the direct product thereof, will be exported, re-exported, or transferred except as authorized and as permitted by the laws and regulations of the United States. Prohibited exports include but are not limited to; the export, re-export, or transfer of the Software or technical data to any prohibited entities or destinations subject to the US Government's current list of restricted or embargoed countries, any parties currently listed on the US Government's Denied Parties or Specially Designated National list, and any proliferation activities prohibited by the US Government such as chemical, biological, nuclear or missile technology.
9. TAXES. You are responsible for all applicable sales, use, personal property, excise or other similar taxes or export and import taxes, duties, and charges, however designated and such taxes shall be paid directly by you, without reducing the amount otherwise due to HTDC hereunder.
10. GOVERNMENT END USERS. If you are or are acting on behalf of an agency or instrumentality of the United States Government, the Software, as applicable, is "commercial computer software" and "commercial computer software documentation" and pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use, reproduction and disclosure of the Software is governed by the terms of this Agreement.
11. CONTRACTING PARTIES. If the Software is installed on any computer owned by a corporation or other legal entity, then this Agreement is formed by and between HTDC and such entity. The individual executing this Agreement represents and warrants to HTDC that he or she has the authority to bind such entity to the terms and conditions of this Agreement.
12. INJUNCTIVE RELIEF. In the event of a breach of any of the provisions of this Agreement, you agree that HTDC would have no adequate remedy at law, and accordingly you agree that HTDC, in addition to any other available legal or equitable remedies, is entitled to see injunctive relief against such breach without any requirement to post bond as a condition of such relief.
13. NO JOINT VENTURE. Neither of the parties hereto is the agent or employee of the other for any purpose whatsoever. The parties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any Agreement with a third party or to incur any obligation or liability on behalf of the other party.
14. WAIVER. The failure HTDC to exercise any of its rights under this Agreement or to require the performance of any term or provision of this Agreement, or the waiver by HTDC of such breach of this Agreement, shall not prevent a subsequent exercise or enforcement of such right by HTDC or be deemed a waiver of any subsequent breach of the same or any other term or provision of this Agreement. Any waiver by HTDC of the performance of any of the terms or conditions of this Agreement shall be effective only if in writing and signed by an authorized representative of HTDC.
15. FORCE MAJEURE. If circumstances beyond the control of the parties shall temporarily make it impossible for either or both of them to perform their agreements hereunder, then the principles of force majeure shall apply and the right and obligations of the parties shall be temporarily suspended during the force majeure period to the extent that such performance is reasonably affected thereby. If such circumstances continue for 60 days, the performing party may terminate the agreement.
16. GENERAL. This Agreement is governed and interpreted in accordance with the laws of the State of Tennessee without giving effect to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and shall not apply. Any claim arising out of or related to this Agreement must be brought exclusively in a federal or state court located in Washington County, Tennessee and you consent to the jurisdiction of such courts. If any provision of this Agreement shall be invalid, the validity of the remaining provisions of this Agreement shall not be affected. This Agreement is the entire and exclusive agreement between HTDC and you with respect to the Software and supersedes all prior agreements (whether written or oral) and other communications between HTDC and you with respect to the Software.