SOFTWARE LICENSE AGREEMENT AND LIMITED WARRANTY
READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE USING SOFTWARE DEVELOPED BY IBM BP NOTESMAIL. THE PROGRAM IS LICENSED (NOT SOLD). BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, CLICKING ON AN "ACCEPT" BUTTON, OR OTHERWISE USING THE PROGRAM, LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF LICENSEE, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND LICENSEE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS,
* DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK ON AN "ACCEPT" BUTTON, OR USE THE PROGRAM; AND
* PROMPTLY RETURN THE UNUSED MEDIA, DOCUMENTATION, AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM IT WAS OBTAINED FOR EITHER REPLACEMENT OR, IF SO ELECTED BY THE LICENSOR, A REFUND. IF THE PROGRAM WAS DOWNLOADED, DESTROY ALL COPIES OF THE PROGRAM.
THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE PROGRAM BETWEEN YOU AND IVE TECHNOLOGIES LLC DBA NOTESMAIL, (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 nontransferable license to use the Program , in object code form only, and the accompanying User Documentation (collectively referred to as the "Software") only as authorized in this License Agreement. The terms and conditions of this Agreement shall govern use of the Software for an evaluation period of fifteen (15) days, and for all use of the Software thereafter. The Software may be used only on a single computer owned, leased, or otherwise controlled by you, or in the event of the inoperability of that computer, on a backup computer selected by you. Neither concurrent use on two or more computers nor use in a network is permitted without separate authorization and the payment of other license fees. The Product is licensed for our internal use and the Product or any derivative or by-product of the Product may not be used by, sub-licensed, re-sold, rented or distributed to any other party. You agree that you will not assign, sublicense, transfer, pledge, lease, rent, or share your rights under this License Agreement. You agree that you may not reverse assemble, reverse compile, or otherwise translate the Software. Upon loading the Software into your computer, you may retain the program CDs for backup purposes. In addition, you may make one copy of the Software on a second set of CDs for the purpose of backup in the event the Program CDs are damaged or destroyed. You may make one copy of the user's Manual for backup purposes. Any such copies of the Software or the User's Manual shall include Licensor's copyright and other proprietary notices. Except as authorized under this paragraph, no copies of the Program or any portions thereof may be made by you or any person under your authority or control.
2. Licensor's Rights. You acknowledge and agree that the Software and the User's Manual are proprietary products of Licensor protected under U.S. and international copyright, trademark, trade secret and patent laws. You further acknowledge and agree that all right, title, and interest in and to the Program, 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 Program, but only a limited right of use revocable in accordance with the terms of this License Agreement. The provisions of the paragraph shall survive termination of this Agreement.
3. Term. This License Agreement is effective upon your opening of this package and shall continue until terminated. You may terminate this License Agreement at any time. Licensor may terminate this License Agreement at any time and without notice upon the breach by you of any term hereof. Upon termination, you agree to return to Licensor the Program and all copies and portions thereof.
4. Limited Warranty. Licensor warrants, for your benefit alone, for a period of sixty (60) days from the date of commencement of this License Agreement (the "Warranty Period") that the Program CDs are free from defects in material and workmanship. Licensor further warrants, for your benefit alone, that during the Warranty Period the Program shall operate substantially in accordance with the functional specifications in the User's Manual. If during the Warranty Period, a defect in the Program appears, you may return the Program to Licensor for either replacement or, if so elected by Licensor, refund of amounts paid by you under this License Agreement. You agree that the foregoing constitutes your sole and exclusive remedy for breach by Licensor of any warranties made under this Agreement. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE PROGRAM, AND THE SOFTWARE CONTAINED THEREIN, ARE 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. Licensor shall have the right, but not the obligation, to defend or settle at its option, any action at law against You arising from a claim that your permitted use of the Product and this Agreement infringes any patent, copyright or other ownership rights of a third party. You agree to provide to Licensor written notice of any such claim within ten (10) days of your notice thereof and provide reasonable assistance in its defense. Licensor has sole discretion and control over such defense, unless it declines to defend or settle, in which case You are free to pursue any alternative You may have.
5. 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 Agreement shall not exceed the license fee paid by you to Licensor for the use of the Program. 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.
6. Miscellaneous. This License Agreement shall be governed in accordance with the laws of the State of New York. The United Nations Convention on Contract for the International Sale of Goods is expressly excluded. Licensor may bring suit in any court of competent jurisdiction, to seek relief for any breach or any infringement by You or any party for whom You are responsible. If any action is brought by either party to this License Agreement against the other party, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation. 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. 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.