END USER LICENSE AGREEMENT
kNEWS ListBuilderTM for IBM Lotus Notes and Domino R5 & 6
IMPORTANT — PLEASE READ CAREFULLY: This License Agreement, “License”, is a legal agreement between you, the “Licensee”, (either an individual or an entity) and Maarga, the “Licensor”, for kNEWS ListBuilderTM, the Software Product.
Upon the terms and conditions set forth in this License, Maarga grants the Licensee a non-exclusive and perpetual right to use the Software Product defined below, for the limited purpose of Licensee’s own internal use on a restricted number of computers:
- Software Product: kNEWS ListBuilder for IBM Lotus Notes/Domino R5 & 6.
Description of Software Product: A communications and marketing application for IBM Lotus Notes/Domino R5.0.x. and 6.0.
You may install only ONE copy of the Software. By clicking on the “Accept” button, installing, copying or otherwise using the Software, Licensee agrees to be bound by the terms of this License Agreement. If Licensee does not agree to the terms of this License Agreement, click on the “Decline” button.
1. DEFINITIONS:
Software Product: The term Software Product shall mean the kNEWS ListBuilder software program in any form and including Binary Code, Source Code, and related documentation as defined below.
Software: The term Software means the logical instructions to which the License refers and all such human or machine readable or translatable versions whether they be stored on physical media or stored on electronic media. The term Software is also meant to include ancillary materials, any user instructions, design specifications or any other reference documentation supplied with the Software. Software may include both Licensor and third-party software programs in any of the above forms.
Binary Code: The term Binary Code shall mean any code in machine-readable form generated by compilation of Source Code and contained in a medium that permits it to be loaded into and operated on the computers of Licensee. Also known as Object Code.
Source Code: The term Source Code shall mean human-readable computer programming code, associated procedural code, and related and supporting documentation, corresponding to the Software Product and all subsequent versions thereof furnished to Licensee.
Derivative Works: The term Derivative Works shall mean a program (or work) that is based upon one or more preexisting programs, such as a revision, modification, translation, abridgement, condensation, expansion, or any other form in which such preexisting programs may be recast, transformed, or adapted and that, if prepared without authorization of the owner of the preexisting work, would constitute copyright infringement or other infringement of proprietary rights of the owner therein.
2. TAXES: Licensee shall pay any tariff, duties and/or sales or use tax, or any tax in lieu thereof imposed by any government or governmental agency with respect to the License or use of the Software Product or this License itself.
3. TERM: The Software Product shall be under license effective from the date of shipment or download and shall remain in force until Licensee discontinues the use of such Software Product, or this License is otherwise terminated as provided herein.
4. RIGHTS GRANTED: The Licensee is granted a non-exclusive, perpetual license to use, copy, modify and prepare Derivative Works of the Software Product furnished hereunder, only as follows:
(a) The Software Product licensed hereunder may be copied for backup purposes, in whole or in part (with the proper inclusion of the Licensor’s copyright notice and any of Licensor’s proprietary notices on the Source Code) for such use.
(b) The Licensee shall have the right to use one instance of the Software Product licensed hereunder and on one single (1) central processor unit (CPU) located in the designated facility.
(c) Licensee may modify the Software Product or prepare Derivative Works, provided that the Software Product and all Derivative Works shall remain protected by Licensee in accordance with the terms of this License.
(d) This License is for limited use of the Software Product, to be used by Licensee for internal use, application development, support and maintenance purposes as defined herein, and does not provide Licensee with any right to assign, sublicense or transfer the Software Product or any part thereof, including Derivative Works, to any third party without Licensor’s prior written approval.
5. SECURITY: The Software Product licensed hereunder is and incorporates proprietary information and trade secrets of Licensor. The Licensee agrees not to provide, transfer or otherwise make available the Software Product or any portion thereof in any form, including but not limited to, flow charts, logic diagrams, and listings to any third party, without the prior written approval of Licensor. Licensee shall take appropriate action by instruction, agreement or otherwise with those of its employees (or agents) having access to any Software Product licensed hereunder to restrict and control the use, copying, modification, protection and security of such Software Product in accordance with the terms and conditions of this License.
6. TITLE: Except for the licenses which are granted hereunder, nothing in this License shall be construed as transferring to Licensee any right, title or interest in the Software Product, or Derivative Works, or as conferring any license or other right, by implication, estoppel or otherwise, under any patent, patent application, trade secret, trademark or copyright.
7. ASSIGNMENT: Without the prior written approval of the Licensor, the Licensee may not assign, sublicense or otherwise transfer this License to any third party. No right to reprint or copy the Software Product in whole or in part is granted hereby except as otherwise provided herein.
8. CONSIDERATION: Licensee shall provide Licensor with constructive suggestions for the improvement of the Software Product through Licensor’s various product forums.
9. TERMINATION: In the event that Licensee (i) attempts to assign (the word “assign” to include, without limiting the generality thereof, a transfer of a majority interest in Licensee), sublicense or transfer this License or any license granted hereunder, or any Software Product provided hereunder to any third party, (ii) attempts to make an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of all or part of its property and/or (iii) is adjudged a bankrupt, and such condition(s) is not remedied within ten (10) days after written notice thereof has been given to Licensee, then Licensor may terminate this License and all licenses granted hereunder by written notice to Licensee.
In the event that Licensee fails to comply with any provision of this License with respect to any Software Product licensed hereunder and such failure to comply is not remedied within thirty (30) days of the time Licensee first becomes aware of or should have become aware of such failure to comply, then Licensor may immediately terminate this License and all licenses for Software Product granted to Licensee hereunder by written notice to Licensee.
Licensee may terminate this License at any time by furnishing Licensor with written notice thereof and by complying with the provisions specified below relative to the return or destruction of the Software Product and related materials. However, such termination shall not relieve Licensee of its obligation hereunder with respect to said Software Product.
Within two (2) weeks after any termination under this Article 9, Licensee shall return to Licensor or destroy the original and all copies (including partial copies) of each and every Software Product licensed hereunder. The Licensee shall, within such two (2) week period, provide Licensor with written certification stating that through the use of its best efforts and to the best of its knowledge it has either returned or destroyed such copies.
10. NON-WAIVER: Failure of Licensor at any time to require performance of any provision of this License shall not limit Licensor’s right to enforce the provision, nor shall any waiver by Licensor of any breach of any provision constitute a waiver of or prejudice Licensor’s right otherwise to demand strict performance of the provisions or any other provision.
11. EXPORT CONTROL ASSURANCE: Licensee assures Licensor that Licensee will not export or re-export any Software Product or the direct product thereof supplied by Licensor, directly or indirectly, to the proscribed countries listed in Section 779.4 and associated or successor sections of the U.S. Export Administration Regulations of the U.S. Department of Commerce unless authorized by the U.S. Government.
12. ARBITRATION: Any controversy or claim arising out of or relating to this License or the breach thereof shall be settled by arbitration in San Diego County, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
13. SEVERABILITY: If any provision of this License shall be held illegal, unenforceable, or in conflict with any law governing this License, the validity of the remaining portions shall not be affected thereby.
14. WARRANTY/LIMITATION OF AND LIABILITY: THE SOFTWARE PRODUCT FURNISHED UNDER THIS AGREEMENT IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
15. INDEMNIFICATION: Licensor represents, BUT DOES NOT WARRANT, that to the best of its knowledge the Software Product delivered to Licensee under this agreement will not infringe any valid and existing intellectual property right of any third party.
16. GOVERNING LAW: This License shall be governed by, subjected to and construed according to the laws of the State of California of the United States of America. Any legal action or suit brought in connection with this License shall be brought in the County of San Diego, State of California of the United States of America. The venue for such legal action or suit shall be the California state courts.
17. ACKNOWLEDGEMENT: Licensee acknowledges that it has read this License, understands it and agrees to be bound by its terms and further agrees that it is the complete and exclusive statement of the License between Licensor and Licensee which supersedes all communications and understandings between the parties relating to the subject matter of this License.