ELECTRIC RAIN, INC. ("ELECTRIC RAIN") IS WILLING TO LICENSE THE
SOFTWARE (THE "SOFTWARE") TO YOU ONLY IF YOU ACCEPT ALL OF THE
TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT
(THIS "AGREEMENT").
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY BEFORE ACKNOWLEDGING THAT YOU HAVE READ AND YOU UNDERSTAND
THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND
CONDITIONS.
IF YOU REJECT
THE TERMS OF THIS AGREEMENT, YOU DO NOT HAVE ANY RIGHT OR
LICENSE TO INSTALL OR USE THE SOFTWARE.
GRANT OF LICENSES
1.1 The Software. Electric Rain hereby grants you a non-exclusive and non-transferable license of The Software during the term of this Agreement. The Software may be installed on a maximum of two computers of the same platform, but it may only be used on a single computer at any one time. It may not be used at more than one location at any time. It may not be run by more than one person at any one time, even if copied to a network file server. The Software is in "use" on a computer when it is loaded into temporary memory (i.e., RAM) or installed into permanent memory (e.g., hard disk, CD-ROM, or other storage device) of that computer. You may make one (1) copy of the Software for use solely for backup/archival purposes. You may not reverse-engineer, disassemble or decompile the Software. Electric Rain reserves all rights in and to the Software not expressly granted to you. Without limiting the foregoing, you may not use, copy, modify, transfer, create derivative works of, publicly display or distribute the Software, or any component thereof, except as expressly set forth in this Agreement.
1.2 Documentation. Electric Rain hereby grants you a
non-exclusive and non-transferable license, during the term
of this Agreement, to use, copy and distribute internally any
electronic documentation included with the Software. Each copy
shall contain all copyright and other proprietary notices
appearing on the original. You may use the hard copies of any
printed materials included with the Software for your internal
purposes. Electric Rain reserves all rights in and to the
electronic documentation and printed materials included with
the Software (collectively, the "Documentation"). Without
limiting the foregoing, you may not use, copy, modify, transfer,
create derivative works of, publicly display or distribute the
Documentation, or any component thereof, except as expressly
set forth in this Agreement.
Upgrades. If the Software is an upgrade to an Electric Rain or
third party product, you may use the Software only in conjunction
with that product. If the Software is an upgrade to an Electric
Rain product, your right to use the upgraded product shall be
governed by this Agreement. That is, the upgrade and the upgraded
product shall collectively constitute "Software" hereunder.
Ownership. You acknowledge and agree that, as between Electric
Rain and you, the Software, Documentation and all components
thereof are the exclusive property of Electric Rain, and Electric
Rain owns all right, title and interest, including copyrights and
other intellectual property rights, in and to any and all ideas,
concepts, expertise, programs, systems, methodologies, data or
other materials embodied in, underlying or reduced to practice
in the Software and Documentation.
Trademarks. This Agreement does not authorize you to use any Electric Rain name, trademark or logo.
Term. This Agreement is effective upon your installation of the
Software and will remain in effect until terminated. You may
terminate this Agreement at any time by deleting and destroying
all copies of the Software and Documentation, and any portions
thereof, in your possession or control. Electric Rain may
terminate this Agreement immediately upon notice to you in the
event that you breach any term of this Agreement, in which case
you must immediately delete and destroy all copies of the Software
and Documentation, and any portions thereof, in your possession or
control.
DISCLAIMER OF WARRANTIES. THE SOFTWARE AND
DOCUMENTATION ARE LICENSED "AS IS," AND ELECTRIC
RAIN AND ITS LICENSORS DISCLAIM ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
Limitation of Liability. Electric Rain and its licensors shall not
be liable for any indirect, special, incidental, consequential,
punitive or similar damages arising out of or relating to this
Agreement or the use of or inability to use the Software, however
caused and regardless of legal theory, even if Electric Rain and/or
its licensors has been apprised of the possibility of such damages.
Electric Rain's and its licensors' cumulative liability to you and
all other persons and entities arising out of or relating to this
Agreement shall not exceed the purchase price paid by you for the
Software.
Compliance with Laws. You agree to comply with all laws, rules and
regulations applicable to your use of the Software and Documentation.
Without limiting the generality of the foregoing, you acknowledge and
agree that the Software and Documentation are subject to United States
and local export control laws and may be subject to export or import
regulations of other countries, and you agree to comply strictly with
all such laws and regulations.
Restricted Rights. The Software and Documentation are provided with
restricted rights. Use, duplication or disclosure by the United
States government is subject to the restrictions set forth in the
Rights in Technical Data and Computer Software Clauses in DFARS
252.227-7013(c)(1)(ii) and FAR 52.227-19(c)(2) as applicable.
Governing Law; Venue. This Agreement shall be governed by the laws
of the State of Colorado without reference to its choice of law rules.
You agree that any action related to this Agreement shall be brought
and venued exclusively in the state and federal courts located in
Denver, Colorado.
Severability. If any provision of this Agreement is held invalid by
any law or regulation of any government or by any court or arbitrator,
such invalidity shall not effect the enforceability of the other
provisions insofar as the primary purpose of this Agreement is not
frustrated.
Waiver. Any waiver by Electric Rain of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of
any other breach of such provision or of any breach of any other
provision of this Agreement. Any waiver must be in writing. Failure
by Electric Rain to insist upon strict adherence to any term of this
Agreement on one or more occasions shall not be considered a waiver
or deprive Electric Rain of the right to insist upon strict adherence
to that term or any other term of this Agreement.
Attorneys' Fees. In addition to any other relief, the prevailing
party in any action arising out of this Agreement shall be entitled
to attorneys' fees and costs.
Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all previous communications,
representations or agreements, whether written or oral, with respect
to the subject matter hereof. This Agreement may not be modified or
amended except in a written instrument executed by the parties.
