LiveProject Software License Agreement
Version 2.5, May 8th 2008
PLEASE READ THIS DOCUMENT (THIS "AGREEMENT") CAREFULLY BEFORE USING THE LIVEPROJECT SOFTWARE PROVIDED ALONG WITH THIS AGREEMENT (THE "SOFTWARE"), AS THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN KADONK, INC. AND THE PERSON ENTERING INTO THIS AGREEMENT (OR, IF SUCH PERSON IS ACTING ON BEHALF OF A LEGAL ENTITY, THEN THIS AGREEMENT SHALL BE BETWEEN KADONK, INC. AND SUCH LEGAL ENTITY), WHO SHALL BE REFERRED TO AS "YOU" HEREIN. BY EITHER: CLICKING "I ACCEPT THE TERMS IN THIS AGREEMENT", OR IF YOU COPY, INSTALL, OR OTHERWISE USE THIS COPY OF LIVEPROJECT SOFTWARE, OR YOU PERMIT OR ENABLE OTHERS TO COPY, INSTALL OR USE THIS LIVEPROJECT SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT (OR, IF YOU ARE INSTALLING THE SOFTWARE ON THE BEHALF OF A LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH LEGAL ENTITY TO THE TERMS OF THIS AGREEMENT). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, OR ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE APPLICABLE LEGAL ENTITY, KADONK, INC. IS NOT WILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU MUST NOT INSTALL OR USE THE SOFTWARE; IN WHICH CASE IF YOU HAVE PAID ANY FEE FOR THIS SOFTWARE YOU BE ENTITLED TO A REFUND IN ACCORDANCE WITH THE REFUND POLICY SET FORTH ON THE WEBSITE FROM WHICH YOU ORIGINALLY DOWNLOADED THE SOFTWARE.
1. License Grant. Subject to the terms and conditions of this Agreement, KaDonk, Inc. ("Licensor") hereby grants You a nonexclusive, worldwide, non-transferable (except as permitted under Section 8), perpetual, revocable license, under all of Licensor's Intellectual Property Rights (defined below) in the Software, to:(i) use, perform, and display the Software solely in accordance with the documentation provided to You along with the Software (the "Documentation"); (ii) make as many copies of the Software as permitted by the license code (the "License Code") provided to You; and (iii) make one (1) copy of the Software solely for backup or archival purposes. Any copy You make under this Section must include the Licensor copyright notice and any other proprietary notices that are included in the original version of the Software. As used herein, "Intellectual Property Rights" means all present and future copyrights, trademark rights, trade secret rights, patent rights, and any other intellectual property rights recognized in any jurisdiction. The Software is licensed (not sold) to You. Except for the rights expressly granted by Licensor to You under this Agreement, Licensor and its suppliers retain all right, title and interest in and to the Software, including, without limitation, all copyright, trade secret, trademark, patent and other intellectual property rights therein. The license granted by Licensor to You hereunder confers no title to, or ownership in, the Software.
2. Restrictions. You acknowledge that the Software and its structure, organization, and source code contain valuable trade secrets of Licensor. Accordingly, You agree not to (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) merge the Software with other software; (c) sublicense, lease, rent, loan, or otherwise transfer (except as permitted under Section 8) the Software to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; or (e) otherwise use or copy the Software except as expressly permitted under Section 1.
3. Term and Termination. This Agreement is effective upon Your agreement to the terms hereof, and shall continue until terminated by either party pursuant to this Section. You may terminate this Agreement for convenience at any time. Licensor may terminate this Agreement effective immediately by providing a notice to You if You breach any provision in Sections 1, 2 or 8, or You breach any other material provision of this Agreement and do not cure the breach within twenty (20) days after receiving notice thereof from Licensor. Upon termination of this Agreement, all rights granted to You under this Agreement immediately terminate, You must immediately cease all use of the Software and destroy or return the Software, the Documentation, and the License Code, and all copies thereof. The payment obligations, intellectual property provisions, warranty disclaimer, limitation of liability provisions, indemnity provisions, governing law, government rights, other general provisions, and any other provision that by its nature contemplates continuing effectiveness, shall survive any termination of this Agreement for any reason.
4. Compliance with Law. You will comply with all applicable laws, regulations, and ordinances in using the Software, and otherwise under this Agreement. Without limiting the foregoing, You will not export or re-export the Software in violation of the U.S. Export Administration regulations or other applicable laws and regulations.
5. No Warranty. Warranty Disclaimer. THE SOFTWARE IS PROVIDED TO YOU SOLELY "AS IS" AND "WITH ALL FAULTS", WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE AND THE DOCUMENTATION, OR OTHERWISE UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
6. Limitation of Liability. IN NO EVENT WILL LICENSOR BE LIABLE TO YOU OR ANY THIRD PARTY UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE DOCUMENTATION, OR OTHERWISE UNDER THIS AGREEMENT, EVEN IF LICENSOR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR'S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE, OR THE DOCUMENTATION, WHETHER BASED IN TORT, CONTRACT, OR OTHERWISE WILL NOT EXCEED THE AMOUNT OF FEES PAID FOR THE SOFTWARE, OR FIFTY U.S. DOLLARS ($50), WHICHEVER IS GREATER. THESE LIMITATIONS OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AND WILL BE GIVEN FULL EFFECT EVEN IF THE WARRANTY PROVIDED IN SECTION 5 IS DEEMED INEFFECTIVE. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
7. Fees; Maintenance and Support. You shall pay Licensor the fees set forth in the applicable Licensor order form (the "Order Form") in accordance with the payment terms set forth in the Order Form. Licensor shall use commercially reasonable efforts to provide You with the maintenance and support services as set forth in the Order Form.
8. Assignment. Except as expressly permitted in this Section, You may not assign or transfer this Agreement, in whole or in part (including, without limitation, the license to use the Software), to any third party without the prior written consent of Licensor. Any attempted transfer in violation of the foregoing will be null and void. Licensor may freely transfer or assign this Agreement, in whole or in part, without restriction.
9. Indemnity. You agree to indemnify and hold Licensor and its officers, directors, employees, agents, and suppliers (each, a "Licensor Indemnitee") harmless from and against any and all liabilities, losses, costs, damages, and expenses (including, without limitation, any attorneys' fees or expert witness fees), suffered or incurred by any Licensor Indemnitee, arising from or relating to Your use of the Software or any breach by You of the terms of this Agreement.
10. Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of California without regard to conflicts of law principles that would require the application of the laws of any other state or jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Southern District of California or in a state court in San Diego County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
11. U.S. Government End Users. The Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein.
12. You acknowledge and agree that Licensor may collect anonymous usage information from You (i.e. usage information that does not contain any personally identifiable information about You) at any time, and Licensor may use such usage information for Licensor's business purposes as Licensor deems appropriate.
13. Notice. All notices required by this Agreement must be in writing and will be effective (a) upon personal delivery, (b) 24 hours after sending by air courier or electronic means, or (c) 72 hours after deposit in the U.S. mail certified mail return receipt requested. All notices to Licensor should be sent to the address below or another address designated by Licensor: KaDonk, 12902 Dorathea Terrace, Poway, CA, 92064, USA.
14. Remedies; Injunctive Relief. Unless otherwise expressly set forth herein, each party's remedies hereunder are cumulative. You acknowledge that the Software and the Documentation contain valuable trade secrets and proprietary information of Licensor. You further acknowledge that any actual or threatened breach of Sections 1 or 2 of this Agreement will constitute immediate, irreparable harm to Licensor for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. Notwithstanding anything expressed or implied in this Agreement, Licensor may, at any time, in any court of competent jurisdiction, seek injunctive or other equitable relief to protect or enforce Licensor's intellectual property rights under this Agreement.
15. General. All waivers must be in writing. A party's failure to exercise any of its rights under this Agreement shall not constitute a waiver or forfeiture of any such rights nor of any other rights. If any provision of this Agreement is unenforceable or invalid pursuant to any applicable law, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such unenforceable or invalid provision will be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions. This Agreement (including the applicable Order Form(s), which are incorporated by reference herein) represents the complete and entire agreement between You and Licensor as to the matters set forth herein and integrates all prior or contemporaneous discussions and understanding between us. This Agreement may be modified only by a binding written instrument entered into by You and Licensor which expressly indicates the intention of the parties to amend this Agreement.