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ASSISTED SOLUTIONS, INC.
SOFTWARE LICENSE AGREEMENT
NOTICE: READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE YOU DOWNLOAD,
INSTALL OR USE ASSISTED SOLUTION'S PROPRIETARY SOFTWARE. BY
INSTALLING OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS
AND CONDITIONS. IF YOU DO NOT AGREE TO THE FOLLOWING TERMS
AND CONDITIONS, DO NOT INSTALL OR USE THE SOFTWARE.
1. DEFINITIONS
"ASI" means Assisted Solutions, Inc., a Delaware Corporation.
"You and Your" means the party licensing the Software hereunder.
"Software" means the computer programs in machine readable code provided
hereunder by Assisted Solutions together with any documentation provided
therewith.
"Application" means a software application that you develop which incorporates
the Software.
2. GRANT OF RIGHTS
2.1 General
The License granted for Software under this Agreement authorizes You on a
non-exclusive basis to use the Software. The Software is
licensed, not sold to You and ASI reserves all rights not expressly granted to
You in this Agreement. The License is personal to You and
may not be assigned by You to any third party.
The Software may only be used on systems which are operating properly.
If any computer system is down, the Software may be used on a backup system for
that primary computer system on a temporary basis. You are
permitted to make one back-up copy of the Software for archival purposes.
2.2 License Options
Subject to the receipt by ASI of the applicable license fees, You have the right
use the Software as follows:
a.
Personal/Non-profit license. If you are using the Software
for personal use on a site that generates no income, or are a registered
Non-profit 401(3)c organization, you may use and install one copy of the
Software on one computer, owned, leased or controlled by You, to serve the
single specific site You have qualified for. To qualify for this license, you
must submit information or proof to Assisted Solutions of your personal or
non-profit status, and receive written notification of your qualification for a
personal/non-profit. This license may be revoked by Assisted Solutions at any time,
for any reason.
b. Single
server license. If you have purchased a single server
license, you may use and install one copy of the Software on one computer,
owned, leased or controlled by you.
c.
Site license. If you have purchased a site license,
you may use and install the Software on an unlimited number of computers at a
single, physical location defined as a single mailing address.
d. Redistributable
License. For every redistributable license purchased
hereunder, you may select one of two options:
i) Consultant
License. Under this license, you may integrate the Software into an unlimited
number of custom developedApplications, with a maximum deployment of one
instance per application.
ii) Application
License. Under this license, you may integrate the Software into one
Application, and distribute that Application an unlimited amount of times.
e.
Enterprise License. If you have purchased this license, you may use and install the
Software on an unlimited number of computers that are owned, leased, or
controlled by you. You may also integrate the software into an unlimited number
of Applications, and distribute or deploy those Applications an unlimited
number of times.
Nothing in this Agreement shall permit you, or any third party to disclose or
otherwise make available to any third party the licensed source code or any
portion thereof.
Both the Redistributable License and the Enterprise License are
expressly subject to the following terms and conditions:
a) The
Application must be deployed in a machine compiled format,
such as .dll or .exe;
b) The
Software is fully integrated into the Application such that:
i) the
functionality of the Software is not exposed through programmable interface or
otherwise;
ii) your
end-users cannot use the Software independently of the Application;
iii) the
Application is significantly different from and will not compete with the
Software; and
iv) the
Application is written in a format where the source code is unavailable;
c) The
License Key (defined as a code provided by ASI which identifies you and enables
the Software) is either excluded from the Application or fully integrated
therein such that it is invisible to the end-user;
d) The
Software is not modified, including without limitation, the original
proprietary notices contained therein;
e) Each
Application must bear a copyright notice in Your name;
f) Each
Application must include the following in its source code: "This Application
includes a licensed copy of Software, Copyright © 2005 Assisted Solutions, Inc.
All Rights Reserved. Use of this Software outside of this Application is a
violation of the United States and International Copyright Laws and other applicable laws".;
g) You
agree to indemnify, hold harmless and defend ASI from and against any claims or
lawsuits, including attorney's fees, that arise as a result from the use or
distribution of any Application;
h) You do
not permit further redistribution of the Application by Your end-user
customers; and
i) You
do not use ASI's name, logo or trademark in your literature or to market your
Application.
3. EVALUATION EDITIONS
If ASI has provided Evaluation Editions of the Software to You, You may install
the Software on as many computers are required to evaluate the Software until
the expiration date built into the Software ("Expiration Date").
After the Expiration Date, the Software will cease to function unless you
purchase a license from ASI for use of the Software. You
agree not to defeat the Software's expiration mechanism or continue using the
Software beyond the Expiration Date without paying a license fee.
4. NOTICES
You agree to respect and not to remove, modify, obliterate, or cancel from view
any copyright, trademark, confidentiality or other proprietary notice, mark or
legend appearing in the Software or output generated by the Software and to
reproduce and include same on each copy of Software.
5. NO REVERSE ENGINEERING; NO DERIVATIVE WORKS
You agree not to modify, reverse engineer, adapt, disassemble or decompile the
Software, or any portion thereof. You may not create
derivative works based on the Software or any part thereof.
6. OWNERSHIP
You acknowledge that all copies of the Software in any form are the sole
property of ASI. You have no right, title or interest to any
such Software or copies thereof except as provided in this Agreement.
7. CONFIDENTIALITY
7.1
You hereby acknowledge and agreed that the Software constitute and
contain valuable proprietary products and trade secrets of ASI, embodying
substantial creative efforts and confidential information, ideas, and
expressions. You agree to treat, and take precautions to
ensure that your employees and other third parties treat, the Software as
confidential in accordance with the confidentiality requirements herein.
7.2
You agree to keep confidential all confidential information disclosed in
accordance herewith, and to protect the confidentiality thereof in the same
manner You protect the confidentiality of similar information and data of Your
own but, without limitation exercising at least a reasonable degree of care in
the protection of confidential information.
7.3
You acknowledge that the unauthorized use, transfer or disclosure of the
Software will: (i) substantially diminish the value to ASI of the trade secrets
and other proprietary interests that are the subject of this Agreement; (ii)
render inadequate ASI's remedy at law for such unauthorized use, disclosure or
transfer; and (iii) cause irreparable injury in a short period of time.
If you breach Your obligations with respect to the use or confidentiality of
the Software, ASI shall be entitled to equitable relief to protect its
interests including, but not limited to preliminary and permanent injunctive
relief.
8. LICENSE FEES AND PAYMENT
In consideration of the license rights granted herein, You shall pay the
appropriate license fees, payable in United States funds without deductions
for taxes, assessments, fees, charges or setoffs. Payment of all license
fees is due prior to Your first installation of non Evaluation Editions of the Software.
9. LIMITED WARRANTY
ASI represents and warrants to You that the Software, when properly installed by
You, will perform substantially as described in the website located at
www.assistedsolutions.com for a period of thirty (30) days from the date of
Your initial installation of the Software. ("Warranty Period")
10. YOUR SOLE REMEDY FOR BREACH OF LIMITED WARRANTY
ASI's entire liability hereunder and Your exclusive remedy for any matter
related hereto shall be, at ASI's option, either a) return of the license fee
You paid, or b) repair and replacement of the Software upon its return to ASI,
provided ASI receives written notice from You during the Warranty Period of a
breach of warranty. Any replacement Software will be
warranted for the remainder of the original Warranty Period or thirty (30)
days, whichever is longer.
11. DISCLAIMER OF WARRANTIES
EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT THE SOFTWARE IS PROVIDED TO YOU
"AS IS", AND ASI MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ITS
FUNCTIONALITY, CONDITION, PERFORMANCE, OPERABILITY OR USE. WITHOUT
LIMITING THE FOREGOING, ASI DISCLASIMS ALL IMPLIED WARRANTIES INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR FREEDOM FROM INFRINGEMENT. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE
EXCLUSIONS MAY NOT APPLY TO YOU. THE LIMITED WARRANTY HEREIN
GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY
FROM ONE JURISDICTION TO ANOTHER.
12. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT THE CONSIDERATION WHICH ASI IS CHARGING HEREUNDER
DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY ASI OF THE RISK OF YOUR
CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH YOUR USE
OF THE SOFTWARE. ACCORDINGLY, YOU AGREE THAT ASI SHALL NOT
BE RESPONSIBLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS-OF-PROFIT, LOST SAVINGS,
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF A
LICENSING OR USE OF THE SOFTWARE.
The maximum liability of ASI to any person, firm or corporation in connection
with any license, use or employment of the Software, whether such liability
arises from any claim based on breach or repudiation of contract, warranty,
tort or otherwise, shall in no case exceed the actual price paid to ASI by You
for the Software whose license or use gives rise to the liability.
The essential purpose of this provision is to limit the potential liability of
ASI arising out of this Agreement and use of the Software. The
parties acknowledge that the limitations set forth in this paragraph are
integral to the amount of consideration paid herein in connection with the
license of the Software and that were ASI to assume any further liability other
than set forth herein, such consideration would have necessity be set
substantially higher.
13. INDEMNIFICATION
You agree to defend, indemnify and hold ASI and its employees, agents,
representatives and assigns harmless from and against any claims, proceedings,
damages, injuries, liabilities, costs, attorney's fees relating to or arising
out of Your use of the Software or any breach of this Agreement.
14. EXPORT
You agree that you will not export or transmit the Software or any Applications,
directly or indirectly to any restricted country or in any manner that would
violate United States laws and regulations.
15. TERMINATION
Your license is effective until terminated. You may terminate
it at any time by destroying the Software or returning all copies of the
Software to ASI. Your license will terminate immediately
without notice if You breach any of the terms and conditions of this Agreement,
including non or incomplete payment of the license fee. Upon
termination of this Agreement for any reason: You will uninstall all copies of
the Software; You will immediately cease and desist all use of the Software;
and will return all copies of the Software to ASI.
You agree to indemnify ASI for reasonable attorney's fees and costs in enforcing
ASI's rights under this Agreement.
16. UPDATES
ASI has the right, but no obligation, to periodically update the Software, at
its complete discretion, without the consent or obligation to You or any
licensee or user.
17. AUDIT
You agree that ASI may audit Your use of the Software for compliance with the
terms of this Agreement at any time, upon reasonable notice.
18. INTEGRATION; WAIVER; SEVERABILITY
This Agreement contains the entire understanding and agreement between the
parties. All prior agreements or understandings, oral or
written, are superseded by this Agreement. This Agreement
may not be supplemented, modified, amended, released or discharged except by a
written instrument signed by ASI. All captions and headings
are for purposes of convenience and shall not affect the construction or
interpretation of any of its provisions. Any waiver by
either party of any default or breach shall not constitute a waiver of any
provision of this Agreement or of any subsequent default or breach of the same
or different kind. If any provision of this Agreement is
held invalid, illegal or unenforceable, the remaining provisions shall remain
in full force and effect.
19. GOVERNING LAW; JURISDICTION AND VENUE
The validity, interpretation construction and performance of this Agreement
shall be governed by the laws of the State of Delaware. You hereby consent to the jurisdiction and
venue of such courts, and waive any jurisdiction or venue defenses otherwise
available.
20. TAXES AND OTHER CHARGES
You are responsible for paying all sales, use, excise valuated or other taxes or
governmental charges in addition to freight, insurance and installation charges
and import or export duties.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
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