End User Software License Agreement
ProContent, LLC ("ProContent"), the owner of the AFComponents.com Web site, is willing to grant you, or, in the case that you represent a corporation or other organization, that corporation or organization (collectively and interchangeably, "Licensee" or "You") a limited, personal, non-exclusive license to use the "Software" set forth on the one or more order forms, paper or electronic, You have entered into with ProContent relating to the Software (each, an "Order Form") subject to Your acceptance and agreement to be bound by the terms of this End User Software License Agreement (together with the terms and conditions of the Order Form, the "Agreement").
1. Grant of License. Subject to the terms and conditions of this Agreement, ProContent grants to Youa personal, limited, non-exclusive, non-transferable license to use the number of Licenses for theSoftware set forth in each applicable Order Form.(a)The Standard license grants You the right to use the the software purchased in an unlimited number of personal or commercial applications that you build for your clients. You may not use the Standard license for applications for which usage fees are collected from multiple users.(b)The Extended license grants You the right to use the software in a single application that you intend to distribute to multiple users. For each application you intend to distribute, you may purchase an additional Extended license.
2. Installation. You may install, use, access, display and run the Software on a any number of computers,such as a workstations, web servers or other devices ("Workstations"). You may also store orinstall the Software on a storage devices, such as a network server, used to install or run the Softwareon Your other Workstations over an internal network. However, a license for the Software may not beshared among multiple users, as each license is limited to a single authorized user. If You wish toexpand the number of authorized users of the Software, You may purchase additional licenses from ProContent.Any additional licenses will be subject to the terms of this Agreement.
3. Restrictions. Except as expressly permitted under this Agreement, You will not, and will not allowany third party to: (a) copy the Software (except for 1 copy for backup and disaster recovery purposesor as described in the documentation accompanying the Software); (b) modify, translate, adapt, alter,or create derivative works from the Software; (c) merge the Software with any other software or documentation;(d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of theSoftware; (e) distribute, sublicense, rent, lease or loan the Software to any third party; or (f) usethe Software for the business needs of another person or entity, including without limitation, providingoutsourcing, service bureau, commercial hosting, application service provider or on-line services tothird parties. You may not remove, alter or obscure any proprietary notice that appears on the Softwareor on any copies made in accordance with this Agreement.
4. Ownership. The Software is licensed, not sold, to You for use solely subject to the terms andconditions of this Agreement. The Software and all worldwide intellectual property and proprietaryrights therein and relating thereto, are and will remain the exclusive property of ProContent or itslicensors, if any. Except for the limited rights expressly granted under Section 1, You will have noright, title or interest (whether by implication, estoppel, or otherwise) in or to the Software orany Intellectual Property Rights (as defined below) therein or thereto. ProContent retains all rights,title and interest in and to any and all trademarks and logos of ProContent displayed on or in the Software.You agree not to challenge or contest ProContent?s rights to or ownership of, or otherwise attempt toassert any rights in, the Software. "Intellectual Property Rights" means all worldwide patent,patent applications, copyrights, trade secrets, trademarks, service marks, trade names and any otherintellectual property, proprietary, and database protection rights.
5. Third Party Code. The Software may contain or include software code owned or provided by third-partylicensors of ProContent ("Third-Party Code"). For any Third-Party Code clearly indicated tobe subject to the terms of a third party software license (a "Third-Party License"), theterms of the applicable Third-Party License will apply to the Third-Party Code independent of the termsof this Agreement. Any Third Party Code not subject to a Third Party License is subject to the termsand conditions of this Agreement and the licensors of any such Third Party Code are third party beneficiariesof this Agreement. Nothing in this Agreement limits Your rights under, or grants rights to You thatsupersede, the terms of any applicable Third-Party License.
6. Version Restrictions: You acknowledge that the Software identified as a "beta" version("Beta Software") is provided solely as a convenience for You. Beta Software may includeadditional features or functionality currently under development for inclusion in the Software, butis not currently supported by ProContent. You acknowledge that Beta Software will not be supported underSection 7. You covenant to treat all Beta Software as Software, including, but not limited to, therestrictions on use set forth in Section 3.
7. Maintenance and Support Services. For one year following the Effective Date, subject to the termsand conditions of this Agreement, ProContent will provide, on a commercially reasonable basis, the followingsupport services for the Software ("Support") via email during normal ProContent business hours(which are 8:00 AM ? 5:00 PM Mountain Time, Monday through Friday, excepting holidays): (1) investigationand confirmation of a report by You (submitted to ProContent via email) of a Failure (as defined below),including (i) isolation of the problem(s) causing such Failure; and (ii) within 30 days, repair orreplacement, as applicable and at ProContent?s sole discretion, of the Software as necessary to curethe Failure; (2) installation assistance; (3) assistance with understanding the standard features ofthe Software; and (4) assistance with cross?ProContent component integration. ProContent will use commerciallyreasonable efforts to respond to all support-related email within five business days of receipt ofsuch email. A "Failure" means a failure of the Software to operate substantially in accordancewith the then-current specifications for that software when the software has been installed and usedin accordance with those specifications. ProContent will have no obligation to provide Support for anyFailure that: (a) is due to a breach by You of the Agreement; (b) cannot be reasonably remedied; (c)is due to use of the Software in combination with third-party products, equipment, software, or data;(d) is due to any release of the Software other than the most current release; (e) is due to any modificationsto the Software not provided by ProContent; (f) has been listed as a known issue on ProContent?s website,or (f) is caused by Your negligence, abuse, misapplication, or use of the Software. You will provideProContent with reasonable assistance to resolve the Failure, including providing ProContent with sufficientaccess to and information regarding Your computing environment to enable ProContent to duplicate theFailure at issue and (as applicable) to determine that the Failure has been corrected. ProContent willhave no liability for any changes required by Your hardware or software configuration which may benecessary to use the Software due to a workaround, error correction, or maintenance release. ProContentreserves the right to provide updates and upgrades for the Software to You at its convenience. Anyupdates, upgrades and any other repairs, replacements or modifications to the Software made availableto You will be considered part of the "Software" for purposes of this Agreement and willbe subject to the terms and conditions of this Agreement applicable to the Software.
8. Fees and Payment.
8.1 License Fee. In consideration of the rights to the Software provided under this Agreement, Youwill pay ProContent the fees ("Fees") listed on the AFComponents.com Web site applicable to the Software.
8.2 Payment. Payment of the Fees must be made in U.S. dollars, and must be paid via credit cardor direct withdrawal from a bank account. You grant ProContent the right to charge the credit card orbank account specified in the applicable Order Form for all Fees incurred under this Agreement. Onthe Effective Date, You will remit to ProContent a one-time payment of the Fees as set forth on the OrderForm based on the number of end-user licenses You are purchasing. You may, at any time during the termof the Agreement, increase the number of licenses which you have purchased upon providing written noticeto ProContent, together with payment of ProContent?s then-current Fees associated with such number of additional end-user licenses. All Fees are non-refundable. Your obligation to pay Fees not subject to a reasonable dispute will be unconditional and not subject to abatement, setoff or defense of any kind. Fees exclude all applicable sales, use, and other taxes, fees, duties and similar charges, and You will be responsible for payment of all such taxes (other than taxes based on ProContent?s income), fees, duties, and charges. Any portion of the Fees not paid when due will accrue interest at 18% per annum (1.5% per month) or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
9. Term and Termination. The term of this Agreement will begin on the Effective Dateand, unless earlier terminated as set forth in this Agreement, will continue indefinitely. You mayterminate this Agreement at any time by providing notice to ProContent. This Agreement will also automaticallyterminate if You breach a material term of this Agreement. Upon any termination of this Agreement,You agree to immediately cease all use of the Software, destroy all copies of the Software, and, uponthe request of ProContent, certify in writing Your compliance with the terms and conditions of this Section9. Upon any termination of this Agreement due to uncured breach by ProContent, You will be entitled toreceive a pro rata amount of the Fees paid under this Agreement based on a 3 year useful life of theSoftware. The foregoing is Your exclusive remedy for ProContent?s breach of this Agreement. Sections4, 10, 11, 12, 13 and 16 shall survive termination of this Agreement.
10. Warranty and Disclaimer. ProContent DOES NOT WARRANT THAT: (A) THE OPERATION OFTHE SOFTWARE OR HARDWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT FUNCTIONS CONTAINED IN THE SOFTWAREWILL OPERATE IN COMBINATIONS OF SOFTWARE OR HARDWARE THAT MAY BE SELECTED FOR USE BY YOU; (B) THE SOFTWAREWILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR (C) ANY RESULTS, OUTPUT, OR DATA PROVIDED THROUGH ORGENERATED BY THE SOFTWARE WILL BE ACCURATE, UP-TO-DATE, COMPLETE OR RELIABLE. EXCEPT AS EXPRESSLY STATEDIN THIS SECTION 10, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ProContent SPECIFICALLY DISCLAIMS ALL OTHERWARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW OR OTHERWISE, RELATING TO THIS AGREEMENTAND THE SOFTWARE AND ANY SERVICES PROVIDED TO YOU, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIESOF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
11. Limitation of Liability. THE LIABILITY OF ProContent UNDER THIS AGREEMENT, REGARDLESS OF THE BASISOF LIABILITY OR THE FORM OF ACTION, WILL NOT EXCEED THE FEES PAID TO ProContent FOR THE PORTION OF THESOFTWARE OR SERVICES CAUSING THE LIABILITY. IN NO EVENT WILL ProContent BE LIABLE FOR ANY INDIRECT, SPECIAL,INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OROTHERWISE, AND REGARDLESS OF WHETHER ProContent HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES,INCLUDING WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SOFTWARE, OR ANY RESULTS OBTAINED FROMOR THROUGH THE SOFTWARE. ProContent WILL NOT BE LIABLE FOR ANY NETWORK-RELATED PROBLEMS ATTRIBUTABLETO THE SOFTWARE OR CHANGES TO NETWORK CONFIGURATION THAT MAY AFFECT THE PERFORMANCE OF THE SOFTWARE.
12. Indemnification. You will indemnify,defend, and hold harmless ProContent, its licensors, and each of their respective employees, officers,directors, and affiliates ("Indemnified Parties"), from any and all claims, losses, liabilities,damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlementamounts) which result from any claim or allegation against any Indemnified Party arising from Youruse of the Software or Your breach of any term of this Agreement. ProContent will provide You with noticeof any such claim or allegation, and ProContent will have the right to participate in the defense ofany such claim at its expense.
13. Confidential Information. You acknowledge that the Software containsconfidential and proprietary information of ProContent, including without limitation the Source Code,inventions, algorithms, know how and other proprietary information contained therein (collectively, "ConfidentialInformation"). You agree to protect the Confidential Information with at least the samedegree of care employed with respect to Your own confidential or proprietary information. You willnot use the Confidential Information for any purpose other than in connection with Your use of theSoftware under the Agreement. Except as otherwise set forth in this Agreement, under no circumstanceswill You allow any third party to have access to the Software.
14. Assignment. You may not assign, delegate or otherwisetransfer this Agreement or any of Your rights or obligations under this Agreement without the priorwritten consent of ProContent. Unless specifically authorized in writing by ProContent, assignment of thisAgreement will not release You from any prior outstanding obligation under this Agreement or allowYou or Your assignee to expand the number of installations of the Software authorized under this Agreement.This Agreement is freely assignable by ProContent and will inure to the benefit of ProContent?s successorsand assigns. Any assignment in violation of this Section 14 is null and void.
15. United States GovernmentRestricted Rights. The Software is comprised of "Commercial Computer Software" and "CommercialComputer Software Documentation," as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202,as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 4, as applicable, theCommercial Computer Software and Commercial Computer Software Documentation are licensed to any U.S.Government customers: (a) only as Commercial Items; and (b) withonly those rights as are granted to all other customers pursuant to the terms of this Agreement.
16. AdditionalTerms. If any provision of this Agreement is found to be unenforceable, such term will be consideredseverable from the remaining terms, which will continue to be valid and enforceable. Any amendmentsor modifications of this Agreement will be binding upon the parties only if made in writing and signedauthorized representatives of both parties. Under no circumstances will the preprinted terms of anypurchase order or any other terms apply to this Agreement. No waiver of any of the terms or conditionsof this Agreement will be binding for any purpose unless made in writing and signed by authorized representativesof both parties and any such waiver will be effective only in the specific instance and for the purposegiven. No failure or delay on the part of either of the parties in exercising any right will operateas a waiver, nor will any single or partial exercise by the either of the parties of any right precludeany other or further exercise thereof or the exercise of any other right. All notices, consents andapprovals under this Agreement must be delivered in writing by personal delivery, electronic facsimileor certified mail, postage pre-paid, to the other party at its address set forth on the AFComponents.comWeb Site or at such other address as may be later designated by such party. Notices will be deemedto have been received upon the date of receipt or, in the case of certified mailing, 2 days after depositin the mail. This Agreement will be governed by the laws of the State of Colorado without regard toconflicts of law principles. All disputes arising under this Agreement must be brought in the stateand federal courts located in Denver, Colorado, as permitted by law. Each party irrevocably herebyconsents to the jurisdiction and venue of any such court in any such action or proceeding. No agency,partnership, or joint venture is created by this Agreement. The parties are and remain at all timesindependent contractors and not agents or employees of the other party.