WebVelocity: Licensing

CINCOM SYSTEMS, INC. SOFTWARE LICENSE AGREEMENT

READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE PROCEEDING TO USE THIS COMPUTER SOFTWARE, AND THE ACCOMPANYING USER DOCUMENTATION (THE “PRODUCT”). THE PRODUCT IS COPYRIGHTED AND LICENSED (NOT SOLD). BY DOWNLOADING THE PRODUCT AND USING THE PRODUCT, YOU ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT, YOU SHOULD NOT USE THE PRODUCT. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE PRODUCT BETWEEN YOU AND CINCOM SYSTEMS, INC. (REFERRED TO AS “LICENSOR”), AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.

1. License Grant. Licensor hereby grants to you, and you accept, a nonexclusive and nontransferable license to use the Product only as authorized in this License Agreement. The Product may be used only on computers owned, leased, or otherwise controlled by you in the manner and subject to the terms set forth in this License Agreement. You agree that you will not deploy, assign, sublicense, transfer, pledge, lease, rent, allow access to or share your rights under this License Agreement. You agree that your rights under this License Agreement do not cover deployment and are not to pass to a successor through merger or consolidation. You agree that you may not reverse assemble, reverse compile, or otherwise translate the Product. You agree that you receive no rights other than those expressly granted to you in this License Agreement.

You may make one copy of the Product for the purpose of backup in the event the Product is damaged or destroyed. Any such copies of the Product shall include Licensor’s copyright and other proprietary notices. Except as authorized under this paragraph, no copies of the Product or any portions thereof may be made by you or any person under your authority or control.

U.S. Government Restricted Rights: Licensor provides the Products with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government or any agency or instrumentality thereof is subject to restrictions set forth in subparagraphs (c) (1) and (2) of the Commercial Computer Software – Restricted Rights clause at 48 C.F.R. 52.227-19, or any successor provision, as applicable. The Contractor/Manufacturer is Cincom Systems, Inc., 55 Merchant Street, Cincinnati, Ohio 45246.

2. Licensor’s Rights. You acknowledge and agree that the Product is a proprietary product of Licensor protected under U.S. copyright law and international treaty provisions. You further acknowledge and agree that all right, title, and interest in and to the Product, including associated intellectual property rights, are and shall remain with Licensor. This License Agreement does not convey to you an interest in or to the Product, but only a limited right of use revocable in accordance with the terms of this License Agreement.

3. License Fee. The use of the Product is the consideration for the license granted under this License Agreement.

4. Term. This License Agreement is effective upon delivery of the Product to you and shall continue until terminated. You may terminate this License Agreement at any time. Licensor may terminate this License Agreement upon the breach by you of any term hereof. Upon such termination by Licensor, you agree to discontinue usage and destroy all copies and portions of the Product.

5. Limited Warranty. Licensor warrants, for your benefit alone, for a period of 90 days from the date of commencement of this License Agreement (referred to as the “Warranty Period”) that the Product shall operate substantially in accordance with the functional specifications in the User’s Manual. If during the Warranty Period, a defect in the Product appears, you may return the Product to Licensor for replacement. You agree that the foregoing constitutes your sole and exclusive remedy for breach by Licensor of any warranty made under this Agreement. EXCEPT FOR THE WARRANTY SET FORTH ABOVE, THE PRODUCT IS LICENSED “AS IS,” AND LICENSOR DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

6. Limitation of Liability. Licensor’s cumulative liability to you or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this License Agreement shall not exceed the total amount paid by you to Licensor. In no event shall Licensor be liable for any indirect, incidental, consequential, special, or exemplary damages or lost profits, even if Licensor has been advised of the possibility of such damages. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

7. Trademarks. The trademarks listed in this License Agreement, on the Product, or related documentation are trademarks of Licensor. No right, license, or interest to such trademarks is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to such trademarks.

8. Governing Law. This License Agreement shall be construed and governed in accordance with the laws of the State of Ohio.

9. Costs of Litigation. If any action is brought by either party to this License Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation.

10. Severability. Should any term of this License Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.

11. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

If you have any questions about this License Agreement, or if you have any questions or comments about the Product, please contact the Smalltalk STAR Team via email at CSSTARTeam@cincom.com.