inEntertainment Software License and Support Agreement
BY CLICKING ON THE "I AGREE" OPTION BELOW, YOU ("LICENSEE") BECOME A PARTY TO THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK THE "I AGREE" OPTION, AND DO NOT USE THIS SOFTWARE.
1. GRANT OF LICENSE.
1.1 Grant. Subject to the terms and conditions set forth in this Agreement, inEntertainment, Inc. ("Licensor") hereby grants Licensee a nonexclusive, nontransferable license in the inEntertainment Software (the "Software"). Licensee may use the Software subject to the terms and conditions of this License for Licensee's internal business purposes only. Licensee may copy the Software for archival purposes only, and any copy Licensee makes must retain all of the original copyright and trademark notices.
1.2 License Restrictions. Except as specifically granted in this Agreement, Licensor owns and retains all right, title, and interest in the Software, and any and all related materials. This Agreement does not transfer ownership rights of any description in the Software, or any related materials, to Licensee or any third party. Licensee may not reproduce or install the Software without the express written consent of Licensor, except for bona fide data backup. Licensee may not modify, reverse engineer, or decompile the Software, or create derivative works based on the Software. Licensee may not distribute the Software to any persons or entities other than Licensee's employees, consultants, or contractors. Licensee may not sell the Software to any person or make any other commercial use of the Software. Licensee must retain all copyright and trademark notices on the Software and take other necessary steps to protect Licensors intellectual property rights.
1.3 Licensor Restrictions. Licensor retains no right to the underlying data input with the inEntertainment Software by Licensee into the designated storage engine and will not use for its own purpose or grant or permit any third party any licenses or rights to use for any purpose, commercial, informational or otherwise, the information, names or other data input by Licensee.
1.4 Other Agreements Between The Parties. To the extent that Licensee and Licensor have entered into any separate agreements relating to the services provided by Licensor and/or the Software, the terms of such separate agreements shall control over the terms set forth herein.
2. LICENSE AND SUPPORT FEES.
2.1 License Fees. In consideration for the License granted to Licensee under this Agreement, Licensee agrees to pay Licensor the applicable fee for the number of Licenses purchased for each Software module, pursuant to the following fee schedule:
New Users and Additional Licenses
User 1 through 5
$300 per user per module
User 6 through 10
$240 per user per module
User 11 through 25
$210 per user per module
$180 per user per module
All amounts not paid within ten (10) days of becoming due shall bear interest at the rate of ten percent (18%) per annum.
3. SUPPORT, UPDATES AND MAINTENANCE.
3.1 Limitations. Technical and other support for the Software (Support Services) extends only to licensed software, free of additions or changes that have not been made or approved by Licensor. Support Service requests are made to Licensor via phone or e-mail. Licensee is required to provide adequate information to assist in verification and resolution of the Support Service request. Failure to provide adequate information may result in billable charges for time spent investigating and duplicating the problem by Licensor support technicians. Alterations to the Software database not directed under the guidance or approval of Licensor that result in database corruption will require an additional fee per Support Service request. Customizations to the Software or related products not directed under the guidance or approval of Licensor or related products that result in corruption of the product or data will require an additional fee per Support Service request.
3.2 Licensee's Responsibilities. Licensor support technicians will aid in the resolution of Support Service requests in a timely and professional manner. All maintenance releases or revisions, including program fixes and related documentation, will be made available to the User either by the inEntertainment, Inc. website, or by remote or on- site technicians. Major Product upgrades will be delivered by the inEntertainment, Inc. website or by remote or on-site technicians. Licensor is not responsible for integration or configuration of third-party software, hardware, or operating environments, except where such integration or configuration was either recommended or necessary to supplement the Software for its intended use as agreed to by Licensor. Licensor reserves the right to undertake enhancement requests to the licensed software or product documentation. The licensor agrees to development of enhancements based on reasonable efforts.
3.3 Platforms. This Agreement extends only to platforms and operating environments certified for use with the licensed Software. Licensor is not responsible for integration or configuration with third- party software, hardware, or operating environments, except where such integration or configuration was either recommended or necessary to supplement the Software for its intended use as agreed to by Licensor.
3.4 Annual Service Agreement. In consideration for the Support Services provided by Licensor in connection with Licensee's use of the Software, Licensee agrees to pay Licensor a support fee of 20% based on the per user per module cost of what you have purchased, with a minimum support fee of $450.00. All computer services not specific to the Software shall be billed at an hourly rate of $115.00. Notwithstanding the Disclaimer in paragraph 5.2, Licensor acknowledges that repairs necessitated by defects in the Software are specific to the Software and are covered under the support fee. Annual service agreement fees must be paid in one installment. This fee is subject to change upon ninety (90) days written notice to Licensee. Licensee shall have the right to terminate this agreement in accordance with paragraph 4.2. An accepted change will be reflected on the next invoice for such services.
3.5 Updates. As long as the annual service agreement fees are paid in full, Licensor will provide at no cost to Licensee, periodic upgrades, enhancements and modifications and new versions to the Software and to the IE Licensor knowledgebase. The periodic upgrades, enhancements, modifications and new versions shall automatically become part of and included in the licensed Software for purposes of this Agreement. The rights to said updates, enhancements, modifications and versions shall be retained by Licensor, and provided however, that said rights shall not extend beyond Licensors ability to grant such rights.
4. TERM AND TERMINATION.
4.1 Term. This Agreement, and the license granted under this Agreement, becomes effective when Licensee agrees to this Agreement by clicking on the I AGREE option, below. Unless sooner terminated as set forth in Section 4.2 below, the Agreement shall continue in effect for a period of one calendar year and will automatically renew for additional one (1) year terms unless either party gives notice of its intention not to renew no less than ninety (90) days prior to the end of the current term.
4.2 Termination. For Cause: 1)This License will terminate automatically if Licensee fails to comply with any of the material terms of this Agreement, including but not limited to, payment of any amounts due under this Agreement; 2) Licensee may terminate this Agreement upon five (5) days notice to Licensor i) for Software Failure that cannot be remedied within forty-eight (48) hours, or ii) Licensor fails to perform pursuant to the Annual Service Agreement; 3) Licensee may terminate this Agreement upon thirty (30) days notice to Licensor if Licensor changes the Annual Service Agreement rates pursuant to paragraph 3.4
4.3 Rights on Termination. Licensor has and reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawful or unauthorized use of the Software, including the withholding of access codes necessary to operate the Software upon termination of this Agreement. On termination, Licensee must cease using the Software, and promptly destroy all copies in Licensee's possession.
If Licensee terminates for cause pursuant to paragraph 4.2, then Licensee's payment obligations shall cease and Licensee shall be entitled to a pro-rata refund of all fees (License Fees and Service Fees) paid in advance, which refund shall be calculated based on the number of months of completed service within the term prior to the termination.
5. WARRANTIES, DISCLAIMER, AND LIMITATIONS.
5.1 Warranty. Licensor warrants that it is the owner of the Software or has the right to grant the license described in this Agreement without violating the rights of any third party. Any media delivered in connection with this Agreement containing the Software shall be free from defects for a period of thirty (30) days from the date of the purchase of the Software, provided that this warranty does not cover defects in such media due to users misuse, or an accident subsequent to delivery.
5.2 Disclaimer. THE SOFTWARE IS PROVIDED AND LICENSED AS- IS AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION: (a) ANY WARRANTY THAT THE SOFTWARE IS ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; (b) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND (c) ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. SHOULD THE SOFTWARE PROVE DEFECTIVE, LICENSEE ASSUMES THE ENTIRE RISK OR COST ASSOCIATED WITH SUCH DEFECT AND ANY SERVICE AND REPAIR.
5.3 Limitation of Liability. TO THE MAXIMUM EXTENT ALLOWED BY LAW, LICENSOR IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF LICENSOR OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR'S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT.
6. EXPORT CONTROLS AND RESTRICED RIGHTS.
6.1 Export Controls. None of the Software or underlying information or technology may be downloaded, exported or re-exported into any country to which the United States has embargoed goods, or to anyone on the U.S. Treasury Departments list of Specially Designated Nationals or the U.S. Commerce Departments Table of Deny Orders. By entering into this Agreement (by clicking the I AGREE option below), Licensee is agreeing to the foregoing and Licensee is representing and warranting that Licensee is not a national or resident of, or located in or under the control of, any country subject to such export controls.
6.2 Restricted Rights. The Software is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1) of the Commercial Computer Software Restricted Rights clause at FAR 52.227-19, subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraph (d) of the Commercial Computer Software Licensing at NASA FAR supplement 16-52.227-86, or their equivalent, as applicable.
7. MISCELLANEOUS. Subject to provision 1.4 herein, this agreement represents the complete agreement between the parties concerning the Software and this License and supersedes any and all prior agreements or representations. This Agreement may only be amended by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be governed by and construed under California law as if this agreement had been entered into between California residents and fully performed within California. Licensee may not assign, sublicense, or transfer Licensee's rights or delegate Licensee's obligations under this Agreement without Licensor's prior written consent to be granted in Licensor's sole discretion. This Agreement shall be binding upon the successors and assigns of the parties to this Agreement. Nothing in this Agreement shall be deemed to create an employer-employee, principal-agent, or joint venture relationship. Neither party shall have the authority to enter into any contracts on behalf of the other party. In the event of any dispute between the parties arising out of this Agreement, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorney's fees and costs.