END-USER LICENSE AGREEMENT FOR BRAINSTORM QUICKHELP
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC COMMUNICATION TO ENTER INTO BINDING CONTRACTS. TO THE EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER THE LAWS OR REGULATIONS OF ANY JURISDICTION WHICH REQUIRES AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS.
IN THE EVENT THAT A SYSTEM INTEGRATOR, CONSULTANT, CONTRACTOR OR OTHER PARTY DOWNLOADS, USES OR INSTALLS THE SOFTWARE ON YOUR BEHALF, PRIOR TO YOUR USE OF THE SOFTWARE, YOU REPRESENT AND WARRANT TO BSI THAT SUCH SYSTEM INTEGRATOR, CONSULTANT, CONTRACTOR, OR OTHER PARTY HAS BEEN DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON YOUR BEHALF BY ALL NECESSARY CORPORATE OR LIMITED LIABILITY COMPANY ACTION, AND YOU SHALL BE DEEMED TO HAVE ACCEPTED ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT IN A LEGALLY BINDING FASHION.
This End-User License Agreement (the "Agreement"
) is made by and between BrainStorm, Inc., a Utah corporation with its principal place of business at Ten South Center, American Fork, UT,84003 USA ("BSI"
) and you ("Licensee"
). Licensee and BSI each may be referred to individually as a "Party"
or collectively as the "Parties."
. For the purpose of this Agreement, the licensed QuickHelp computer software and electronic instructional content downloaded and/or installed (including BSI's Microsoft Office add-in, Microsoft Windows 8 app, or Microsoft SharePoint player/add-in, which Licensee may utilize to access the QuickHelp computer software), together with the supporting documentation for such, including any modified, updated or enhanced versions thereof in the future, will be referred to as the "Software."
(a) License Categories. The Software license categories available from BSI are as follows (the "License Categories”):
(x) Full-Use License. A full-use license (which can be a Trial-Use License that Licensee converts to a full-use license by purchasing a license and having a full-use license enabled) is a limited license that, subject to the terms of the license grant in Section 2 below, allows Licensee to Use (as defined below) the Software during the Term (as defined below) (a "Full-Use License”).
(y) Trial-Use License. A trial-use license is a limited license that, subject to the terms of the license grant in Section 2 below, allows Licensee to evaluate the Software before purchasing a Full-Use License (a "Trial-Use License”). If no other period of use or quantity of authorized seats are specified by BSI in the applicable Order Form (as defined below), then Licensee's right to use the Software shall be limited to no more than ten (10) authorized seats for ninety (90) days from BSI enabling the Software for Licensee. Such Trial-Use License is for internal evaluation and demonstration purposes only. At the end of the Trial-Use period, Licensee's access to the Software will, unless Licensee purchases a Full-Use License, be disabled and Licensee agrees to discontinue use thereof. Notwithstanding anything to the contrary herein, use of the Software under a Trial-Use License is entirely at Licensee's own risk. If Licensee converts its Trial-Use License to a Full-Time License, this Agreement shall continue to apply to the Parties following such conversion.
2. License. Subject to the terms and conditions of this Agreement and upon Licensee's full payment of the applicable fees, BSI hereby grants to Licensee, and Licensee hereby accepts from BSI, a non-exclusive, non-transferable, non-sublicensable, time-limited, restricted, revocable internal license to Use the Software in connection with the number of authorized seats and in accordance with the License Category set forth in the Order Form. "Use” means that Licensee may, subject to the terms and conditions of this Agreement, install, use, access, run, or otherwise interact with the Software for its internal business or personal purposes, as the case may be, in accordance with the applicable documentation and the License Category. Licensee shall not allow more than one individual user to utilize a seat, though Licensee may reassign seats from time to time to new users who are replacing former users who have terminated employment or otherwise changed job status or function. "Order Form” means the initial order form or invoice from BSI or its reseller or distributor, whether submitted online or in hard copy, which evidences, together with this Agreement, the initial license of the Software, including any subsequent order forms submitted online or in hard copy by Licensee in connection with this Agreement, and which BSI has accepted, which includes some or all of the following information: the name of the Licensee, the Licensee's address and billing information, the length of the Term (if applicable), the License Category, the license and other fees due from Licensee (if applicable), the quantity of authorized seats being licensed hereunder (if applicable), and any maintenance and support being purchased (if applicable).
3. Use Restrictions. BSI and, as applicable, BSI's licensors, resellers, and distributors and/or suppliers, reserve all rights not expressly granted to Licensee herein. Without limiting the generality of the foregoing, Licensee shall not (except to the limited extent expressly permitted by applicable law): (a) copy, modify, adapt, rent, lease, assign, sell, distribute, export, re-export, use in a service bureau or service provider for third parties or other similar type of environment, sublicense, translate, or reprogram the Software or any portion thereof except as provided in this Agreement; (b) timeshare the Software, make the Software available to others on the Internet or any on-line service, or allow others to copy, access or use the Software; (c) translate, merge, reverse engineer, decompile, or disassemble the Software; (d) use any individual component of Software in a standalone mode; (e) create derivative works based upon the Software; (f) use the Software to perform any activity which is or may be, directly or indirectly, unlawful, harmful, threatening, abusive, harassing, tortious, or defamatory, nor to perform any activity which breaches the rights of any third party; (g) take any actions that would cause the Software to become subject to any open source or quasi-open source license agreement that is not otherwise applicable; or (h) transfer the Software or Licensee's license rights under this License Agreement, in whole or in part. All restrictions on Licensee's use of the Software in this Section 3 shall also apply with respect to any third-party software which may be included in the Software. Licensee agrees to defend, indemnify, and hold BSI harmless from and against any and all claims arising out of Licensee's unauthorized use of the Software or other breach of this Agreement. Licensee may not Use the Software if Licensee is, or is affiliated with, a direct competitor of BSI.
4. Ownership of the Software and Intellectual Property. All rights, title and interest in and to the Software (including any updates or upgrades thereto (if any) provided through this Agreement or in connection with a separate support or maintenance agreement), including all worldwide intellectual property rights therein, shall remain with BSI or its licensors, resellers, distributors and/or suppliers, as the case may be. No title to or ownership of the Software is transferred to Licensee because the Software is licensed to Licensee, not sold. BSI may make changes to the Software at any time without notice, and except as otherwise expressly set forth herein, is not obligated to support, maintain, upgrade or update the Software. Except as otherwise expressly provided herein, BSI grants no express or implied right under any BSI patent, copyright, trademark, or other intellectual property right. Licensee acknowledges that the Software constitutes proprietary information and trade secrets of BSI or its licensors, resellers, distributors and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent. Licensee shall maintain all information and data contained in the Software or any portion thereof in strict confidence and shall not publish, use, communicate or disclose, or permit to be published, used, communicated or disclosed, to third parties such information and data without BSI's prior written consent.
5. Maintenance and Support. BSI may provide up to ten (10) hours of technical support to Licensee per twelve (12) month period during the Term, in BSI's sole discretion. Additionally, BSI may provide updates and upgrades, if any, to Licensee on the same basis that BSI provides updates and upgrades to its other customers, in BSI's sole discretion. BSI shall have no other maintenance or support obligations to Licensee. Licensee may purchase additional technical support from Licensor for $195 per hour, on a pre-agreed basis.
6. Third-Party Software. The Software may include or be bundled with hardware or other software programs licensed or sold by a licensor other than BSI. BSI DOES NOT WARRANT NON-BSI SOFTWARE OR PRODUCTS. ANY AND ALL SUCH THIRD-PARTY PRODUCTS WHICH MAY BE DISTRIBUTED WITH THE SOFTWARE ARE PROVIDED "AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND LICENSEE'S INSTALLATION AND USE THEREOF, AND ANY RELATED WARRANTY SERVICE, IS SUBJECT TO THE APPLICABLE THIRD-PARTY WARRANTY, IF ANY.
7. Limited Warranty. Solely with respect to a Full-Use License, BSI warrants for a period of thirty (30) days from the delivery date of the Software that (a) the media provided by BSI, if any, on which the Software is recorded will be free from material defects in materials and workmanship under normal use, and (b) the operation of the Software, as provided by BSI, will substantially conform to BSI's published documentation for the Software; provided, however, that BSI shall not be liable under these limited warranties if the Software has been modified or altered by anyone other than BSI, if the Software has been abused or misapplied, or if Licensee has failed to incorporate all upgrades and updates that BSI provided to Licensee. If such a defect under warranty Section 7(a) above is reported during the warranty period, Licensee shall return the BSI media to BSI for repair or replacement, in BSI's sole discretion. If a reproducible defect under warranty Section 7(b) above is reported by Licensee during the warranty period, Licensee shall promptly notify BSI or return the Software to BSI, as the case may be, and BSI shall, in its sole discretion, either use its commercially reasonable efforts to resolve the nonconformity or refund the license fees paid by Licensee for the Software.
8. NO OTHER WARRANTIES. LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSEE HAS INDEPENDENTLY VERIFIED THAT THE SOFTWARE IS APPROPRIATE FOR THE PURPOSES FOR WHICH LICENSEE INTENDS TO USE IT, AND THAT LICENSEE DID NOT RELY UPON ANY SKILL OR JUDGMENT OF BSI OR ITS OR ITS LICENSORS, RESELLERS, DISTRIBUTORS AND/OR SUPPLIERS, AS THE CASE MAY BE, IN SELECTING THE SOFTWARE. THE LIMITED WARRANTIES IN SECTION 7 HEREOF ARE LICENSEE'S SOLE AND EXCLUSIVE REMEDIES, AND BSI'S ONLY WARRANTY LIABILITIES, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE. THE FOREGOING LIMITED WARRANTIES DO NOT APPLY TO TRIAL-USE LICENSES, UPDATES, UPGRADES, MAINTENANCE, OR SUPPORT; WHICH IF PROVIDED ARE PROVIDED "AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BSI AND ITS LICENSORS, VENDORS AND/OR SUPPLIERS DISCLAIM ANY AND ALL EXPRESS, IMPLIED, OR OTHER WARRANTIES, CONDITIONS OR TERMS OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES, CONDITIONS OR OTHER TERMS OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY, NON-INFRINGEMENT, COMPATIBILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED THROUGH THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT. ANY EXPRESS WARRANTY MADE OUTSIDE OF THIS AGREEMENT IS EXCLUDED AND SUPERSEDED. BSI DOES NOT WARRANT THAT THE SOFTWARE SHALL SATISFY LICENSEE'S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF SHALL BE UNINTERRUPTED OR ERROR FREE.
9. LIMITATIONS OF LIABILITY. IN NO EVENT WILL BSI, OR ANY OF ITS LICENSORS, RESELLERS, DISTRIBUTORS, SUPPLIERS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING, BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF BSI OR A BSI REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BSI'S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BSI FOR THE SOFTWARE THAT CAUSED THE DAMAGES. LICENSEE ACKNOWLEDGES THAT THE LICENSE AND OTHER FEES PAYABLE BY LICENSEE TO BSI HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BSI WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IN ADDITION, BSI DISCLAIMS ALL LIABILITY OF ANY KIND OF BSI'S LICENSORS, RESELLERS, DISTRIBUTORS, AND SUPPLIERS. NO ACTION MAY BE BROUGHT AGAINST BSI BY LICENSEE LATER THAN ONE YEAR FROM THE DATE UPON WHICH THE EVENTS GIVING RISE TO SUCH ACTION OCCUR.
10. Nondisclosure. "Confidential Information" includes any information disclosed by either BSI or Licensee to the other regardless of the means of communication or the form of information that are either identified as confidential (in writing or orally) or are generally considered to be of a confidential and proprietary nature, including, without limitation, any Software, source codes, object codes, documentation and any proprietary tools, proprietary knowledge, proprietary methodologies, user names, passwords, or email addresses. BSI and Licensee shall each observe complete confidentiality with respect to the Confidential Information, and shall use best efforts and take all reasonable steps to protect the Confidential Information from any disclosure to third parties, use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. BSI and Licensee shall each promptly notify the other of any known unauthorized use or disclosure of the Confidential Information and will cooperate with the other in any litigation brought against third parties to protect its proprietary rights. Notwithstanding the foregoing provisions of this Section 10, BSI and Licensee shall each be permitted to disclose the Confidential Information to their respective directors, officers, employees, or professional advisors (including, without limitation, attorneys, accountants, etc.) in the event (i) each of their directors, officers, employees, independent contractors, or professional advisors agree to bound by an obligation of confidentiality substantially similar to that contained in this Section 10, and (ii) such disclosure to directors, officers, employees, independent contractors, or professional advisors is necessary to facilitate either BSI or Licensee's performance under this Agreement.
11. Copyrights, Trademarks, and Patents. The Software, including any third-party software which may be included therein, is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance may Licensee remove any copyright notice from the Software. Licensee agrees to faithfully reproduce and include all trademarks, copyright and other proprietary notices on any authorized copy of the Software, including those of third parties. "QuickHelp” is either a registered trademark or trademark of BSI in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Software.
12. Injunctive Relief. Licensee hereby expressly agrees that BSI, in addition to any other rights or remedies which BSI may possess, shall be entitled to injunctive and other equitable relief without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
13. Payment for the Software. Licensee shall be invoiced by BSI and payment in U.S. dollars shall be as and when provided in the invoice (typically net 30). This Agreement, including the license and any services, support or maintenance which may apply, shall automatically terminate if Licensee fails to pay any required fees when due. Except as otherwise expressly provided herein, all payments are non-cancellable and non-refundable. The license or other fees due during any month or year of the term shall be at BSI's then current rates, as such my change from time to time. If Licensee is late in paying any amounts to BSI, such overdue amounts shall accrue interest at a rate of 1.5% per month until Licensee pays in full (including interest).
14. Payment of Taxes. In the event that any withholding, sales, value-added, use or other taxes or government fees, assessments or charges are payable because of this Agreement, the license of the Software to Licensee, or because of any payment by Licensee, then Licensee shall pay all such taxes, fees, assessments and charges in addition to all other payments, regardless of when such tax liability is asserted. If BSI is required to make any such payments, Licensee agrees to reimburse BSI for such payments promptly upon notice from BSI.
15. Audit. Licensee shall permit BSI or its agents, at BSI's expense, to conduct audits to verify Licensee's compliance with this Agreement. Such audits shall be conducted during normal business hours and after reasonable advance notice from BSI to Licensee.
16. Term. Unless otherwise terminated as provided herein, this Agreement shall have the term specified in the Order Form and, solely with respect to Full-Use Licenses, shall automatically renew for successive one year periods unless either party gives the other party notice of its intent not to renew at least thirty (30) days prior to the expiration of the current term (the "Term”). License and other fees due from Licensee to BSI during the Term shall be at BSI's then current rates, as such may change from time to time.
17. Termination. Any Trial-Use License, and this Agreement, shall automatically terminate at the end of the Term specified herein or in the Order Form, unless converted to a Full-Use License. Any Full-Use License, and this Agreement, together with any maintenance, and/or support that may be granted in connection herewith, shall automatically terminate, without any notice or action by either party, upon the occurrence of any of the following: (a) at the end of the Term; (b) if Licensee materially breaches any provision of this Agreement; (c) upon thirty (30) days notice from BSI of its desire to terminate, for any reason or no reason; or (d) upon non-payment by Licensee of any license or other fees when due. Upon expiration or termination of this Agreement, Licensee shall immediately, in BSI's sole discretion, either (x) cease all use of the Software, uninstall all the Software, and erase or destroy all copies of the Software within the possession or control of Licensee, or (y) return all the Software, the related documentation, and all associated end-user materials, including all copies thereof, to BSI. Furthermore, upon expiration or termination of this Agreement, BSI may disable all functionality of the Software and refuse Licensee further access to BSI's website. The foregoing shall not limit or affect any remedy available to BSI as a result of any breach of this Agreement by Licensee.
18. Survival.Sections 3, 4, 6, 8–24, and 26 shall survive the expiration or termination of this Agreement for any reason whatsoever.
19. GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, LICENSEE AND BSI AGREE TO EXCLUDE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER THE APPLICABLE LAW, BSI MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT; OR (B) PROTECTING BSI'S INTELLECTUAL PROPERTY RIGHTS.
20. Software Supplied to the Government. The Software is a "commercial item,” "commercial computer software” and/or "commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted herein.
21. Export Law Assurances. Licensee shall not export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
22. Severability. If any provision in this Agreement shall be found or be held to be invalid, unenforceable, or in conflict with applicable law in any jurisdiction in which this Agreement is being performed, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity, unenforceability, or conflict, and all other provisions of this Agreement shall remain unaffected.
23. Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by such party of any representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this Agreement or failure to perform by the other party shall not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
24. Assignment. Licensee may not assign, sublicense, or transfer this Agreement, the Software, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BSI. Any such purported assignment, sublicense, or transfer shall be null and void. BSI may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer upon written notice to Licensee.
25. Publication. Licensee hereby consents to BSI's written and oral disclosure of Licensee's name as an end user of the Software in a factual listing of BSI's customers (with or without a list of the License Category of the Software licensed by Licensee) to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BSI external website and/or to financial and industry analysts.
26. Entire Agreement; Amendment. This Agreement, together with all applicable Order Forms (which are hereby incorporated herein by reference), sets forth the entire understanding and agreement between Licensee and BSI relating to subject matter hereof. No licensor, distributor, dealer, retailer, reseller, sales person, or employee is authorized to modify this Agreement or to make any warranties, representations, or promises that are different from, or in addition to, the warranties, representations or promises expressly set forth in this Agreement, and BSI is not obligated under any other agreements, unless in writing and signed by an authorized representative of BSI. Any terms and conditions of any Licensee order form, agreement or other document submitted by Licensee in connection with the Software that are in addition to, different from or inconsistent with the terms and conditions of this Agreement are not binding on BSI and are ineffective to the extent that they conflict with the terms and conditions of this Agreement. This Agreement may not be modified or amended except in a writing agreed to by both parties.