license.txt

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SOFTWARE LICENSE AGREEMENT

READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE LICENSED TO YOU. THE SOFTWARE COVERED BY THIS AGREEMENT IS COPYRIGHTED AND IS LICENSED, NOT SOLD. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE LICENSED SOFTWARE BETWEEN YOU AND GLOBALMEDIA DESIGN INC. [GMD], AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. BY TAKING POSSESSION OF THE "GMD LICENSED SOFTWARE," YOU AND YOUR COMPANY (COLLECTIVELY "YOU") ARE ACCEPTING AND AGREEING TO THE TERMS. OF THIS LICENSE AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT, YOU SHOULD PROMPTLY DELETE THE LICENSED SOFTWARE PROGRAMS FROM YOUR SYSTEM AND ADVISE US OF THE SAME. 

1. SCOPE. This License Agreement covers all of the software programs offered by Radiation (collectively and individual referred to as "GMD Licensed Software".) The identification of any code provided to you as licensed software shall be controlled by the contents of the "GMD Licensed Software" archive provided at purchase. 

2. GRANT. Subject to the provisions contained herein, GMD hereby grants you a non-exclusive license to use its proprietary Software product for the proposed fee. 

3. SOFTWARE AND DOCUMENTATION. GMD shall furnish the Software to you in interpretable Perl source-code form. GMD shall also furnish you with the current User's guide and Administrator's guide, current to the time of the software installation. 

4. RESTRICTED USE. You are granted a non-exclusive right to use the licensed software programs only as authorized herein. You may use and execute the licensed software programs for your benefit and purposes on one computer, owned, leased or controlled by you, or on a backup computer of your choice. You may not copy the Software, except for backup or archival purposes. Any such copy made by you shall be subject to this Agreement and shall contain all of GMD's notices regarding copyrights, trademarks and other proprietary rights as contained in the Software originally provided to you. You may not lend, rent, lease or otherwise transfer the Software. The Software is protected by the copyright laws of the United States and international copyright treaties. 

5. TITLE. Title, ownership rights, and intellectual property rights in and to all Software and Documentation licensed to you shall remain in GMD. This Agreement does not include the right to sublicense the Software and is personal to you and therefore may not be assigned (by operation of law or otherwise) or transferred without the prior written consent of GMD. You acknowledge that the Software in source code form remains a confidential trade secret of GMD. You agree not to modify or create derivative works of the software. 

6. CONTENT. Title, ownership rights, and intellectual property rights in and to the content accessed through the Software is the property of the applicable content owner and may be protected by applicable copyright or other law. This License gives you no rights to such content. 

7. DISCLAIMER OF WARRANTY. The Software is provided on an "AS IS" basis, without warranty of any kind, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. The entire risk as to the quality and performance of the Software is borne by you. Should the Software prove defective, you, and not GMD, assume the entire cost of any service and repair. This disclaimer of warranty constitutes an essential part of the agreement. SOME STATES DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION. 

8. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL GMD BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL GMD BE LIABLE FOR ANY DAMAGES IN EXCESS OF GMD'S LIST PRICE FOR LICENSE TO THE SOFTWARE, EVEN IF GMD SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. 

9. EXPORT CONTROLS. You may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all United States laws and other applicable laws and regulations. In particular, but without limitation, none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Haiti, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such county or on any such list. 

10. TERMINATION. GMD may terminate this Agreement immediately in the event of default by you. Upon any termination of this Agreement, you shall immediately discontinue the use of the Software and shall within ten (10) days return to GMD all copies of the Software and Documentation. You may terminate this Agreement at any time by destroying the Software and Documentation and all copies thereof. Your obligations to pay accrued charges and fees, if any, shall survive any termination of this Agreement. 

11. COSTS OF LITIGATION. If any action is brought by either party to this Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation. 

12. ENTIRE AGREEMENT. This Agreement represents the complete and exclusive statement of the agreements concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS SET FORTH HEREIN, AND GMD AGREES TO FURNISH THE SOFTWARE AND DOCUMENTATION ONLY UPON THESE TERMS AND NOT THOSE CONTAINED IN YOUR PURCHASE ORDER. 

13. SEVERABILITY. 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, and such decision shall not affect the enforceability (i) of such provision under other circumstances or (ii) of the remaining provisions hereof under all circumstances. Headings shall not be considered in interpreting this Agreement. 

14. NO WAIVER. 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.