PLEASE READ CAREFULLY BEFORE INSTALLING, COPYING OR OTHERWISE DOWNLOADING AND USING THE SOFTWARE: THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (“LICENSEE”) AND ANYWHERECOMMERCE INC (“AnywhereCommerce”) AND IS EFFECTIVE UPON YOUR ACCEPTANCE. BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD OR USE THE SOFTWARE.
This End User License Agreement (“License”) applies to software and related information, documents and materials (“the Software”) which is made available on AnywhereCommerce’s Developers Website (developer.Anywherecommerce.com) (“the Website”) and which can be downloaded by a user of the Website. Any such Software download is subject not only to the Terms and Conditions of the Website but also to the terms and conditions of this License. This License is a separate legally binding agreement between the Licensee, the downloader of the Software, and AnywhereCommerce, Inc., a corporation having its principal place of business at 376 Victoria Ave, Suite 418 Westmount, Quebec H3Z 1C3, Canada (“AnywhereCommerce”).
AnywhereCommerce grants the Licensee for the term of this License a limited, personal, non-exclusive license to:
2. 1. 1.
use the Software in object code executable only form on a single computer owned, leased and/or controlled by you and limited to use by you in order for you to develop applications in connection with AnywhereCommerce products;
2. 1. 2.
make up to 2 copies of the Software in machine readable form for normal operational security and back-up purposes. This License will apply to such copies in the same manner and to the same extent as it applies to the original copy of the Software installed by the Licensee.
All rights not expressly granted to the Licensee under this License are reserved to AnywhereCommerce, and the Licensee agrees not to take or permit any action with respect to the Software that is not expressly authorized under this License. For the avoidance of doubt, the Licensee shall have no right to use, incorporate into other products, copy, modify, translate or transfer to any third party the Software or any modification, adaptation or copy of the Software or any part thereof, nor to decompile, reverse engineer, or disassemble the binary code of the Software, either in whole or in part, except as expressly provided in this License.
The Software is licensed to the Licensee only. The Licensee may not rent, lease, sub-license, sell, assign, pledge, transfer or otherwise encumber or dispose of the Software, on a temporary or permanent basis without the prior written consent of AnywhereCommerce.
OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
The Licensee’s only right to use the Software is by virtue of this License and the Licensee acknowledges that all intellectual property rights in or relating to the Software and all parts of the Software are and shall remain the exclusive property of AnywhereCommerce or its licensors.
The Licensee further acknowledges that all intellectual property rights in or relating to any improvement, modification or adaptation of the Software arising directly or indirectly from the Licensee using the Software are and shall remain the exclusive property of AnywhereCommerce.
The Licensee agrees that the Licensee will not remove or alter any copyright notices or similar proprietary devices, including without limitation any electronic watermarks or other identifiers, that may be incorporated in the Software or any copy of the Software.
The structure, organization and source code of the Software are the valuable trade secrets and proprietary confidential information of AnywhereCommerce and its licensors. The Licensee agrees not to provide or disclose any such confidential information in the Software or derived from it to any third party.
The provisions of clause 4 .1 will not apply to any information which is:
4. 2. 1.
lawfully obtained free of any duty of confidentiality (otherwise than directly or indirectly from AnywhereCommerce); or
4. 2. 2.
already in Licensee’s possession, provided that Licensee can show such possession from written records (other than as a result of a breach of this clause 4); or
4. 2. 3.
which Licensee can demonstrate is in the public domain (other than as a result of a breach of this clause 4).
To the extent that any information is necessarily disclosed pursuant to a statutory or regulatory obligation or court order, such disclosure shall not be a breach of this clause 4 provided Licensee uses its best efforts to prevent any such disclosure.
WARRANTY AND SUPPORT
The Software is provided “as is” with no representation, guarantee or warranty of any kind as to its functionality or that it does not and will not infringe any third-party rights (including intellectual property rights). AnywhereCommerce has no obligation under this License to provide technical or other support to Licensee. The provision of any such services shall be subject to a separate agreement between Licensee and AnywhereCommerce.
LIMITATION AND EXCLUSION OF LIABILITY
AnywhereCommerce makes no express warranties with respect to the Software and AnywhereCommerce hereby excludes (to the fullest extent permissible in law), all conditions, warranties (including without limitation any warranty that the Software will meet Licensee’s requirements or that its operation will be uninterrupted or error free) and stipulations, express (other than those set out in this License) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favor of you. Except as set out in this License you assume the entire risk as to the quality and performance of the Software.
AnywhereCommerce will be under no liability to Licensee whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of data, loss of savings, depletion of goodwill and like loss) howsoever caused arising out of or in connection with:
6. 2. 1.
the Software, or the manufacture or sale or supply, or failure or delay in supply, of the Software by AnywhereCommerce or on the part of AnywhereCommerce’s employees, agents or sub-contractors.
6. 2. 2.
any breach by AnywhereCommerce of any of the express or implied terms of this License.
6. 2. 3.
any use made of the Software; or
6. 3. 4.
any statement made or not made, or advice given or not given, by or on behalf of AnywhereCommerce.
Without prejudice to clauses 6. 1 and 6. 2, AnywhereCommerce’s aggregate liability under this License (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct or consequential loss (all three of which terms include without limitation of profits, loss of business, depletion of goodwill and like loss) howsoever caused will be limited to the higher of the price paid by Licensee to use the Software or USD $200.00.
Licensee acknowledges that the above provisions of this clause 6 are reasonable given the charges made (if any) for the Software and Licensee accepts such risk. Licensee may insure accordingly.
TERM AND TERMINATION
This License shall commence upon the earlier of your acceptance of this License or your installation of the Software and shall continue until terminated in accordance with clause 7. 2 or otherwise in accordance with this License.
This License will terminate automatically if Licensee fails to comply with any term or condition of this License or if Licensee uninstalls/destroys or voluntarily returns the Software to AnywhereCommerce.
Upon termination of this License for any reason whatsoever Licensee must uninstall the Software and destroy, and upon request of AnywhereCommerce certify the destruction of, all copies of the Software including all components of it in Licensee’s possession.
The termination of this License howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued prior to termination. Clauses 2.2, 2.3, 3, 4, 5, 6, 7.3, 8, 9 and 1 0 of this License will continue to be enforceable notwithstanding termination.
GOVERNING LAW AND JURISDICTION
The formation, existence, construction, performance, validity and all aspects whatsoever of this License or of any term of this License will be governed by the laws of Delaware.
Subject to clause 8.3 the courts of Delaware will have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this License. The parties irrevocably agree to submit to that jurisdiction.