1. GRANT OF LICENSE:
Subject to the terms and conditions of this Agreement, Licensor grants to Licensee a non-exclusive, non-transferable license to use the Materials. LICENSEE MAY NOT ASSIGN, TRANSFER, SUBLICENSE OR OTHERWISE SHARE, COPY OR DISTRIBUTE THE MATERIALS TO OR WITH ANY THIRD PARTY, IN WHOLE OR IN PART, IN ANY FORM WITHOUT LICENSOR’S PRIOR WRITTEN CONSENT. LICENSEE MAY, HOWEVER, SHARE THE MATERIALS WITH LICENSEE’S SPOUSE AND CHILDREN, BUT NO OTHERS. ANY VIOLATION OF THE FORGOING LIMITATIONS SHALL RESULT IN LICENSEE’S OBLIGATION TO PAY LICENSOR A LIQUATED DAMAGE OF $10,000, PER VIOLATION AS WELL AS ANY SUBSEQUENT UNAUTHORIZED TRANSFER OR SHARING OF THE MATERIALS BY OTHERS RESULTING FROM LICENSEE’S BREACH OF THIS AGREEMENT. TERMINATION OF THIS AGREEMENT SHALL NOT RELIEVE LICENSEE OF ITS OBLIGATION TO PAY SUCH DAMAGES. LICENSOR’S RIGHT TO RECOVER SUCH DAMAGES SHALL ONLY BE SUBJECT TO THE APPLICABLE STATUTE OF LIMITATIONS
2. CONSIDERATION TO LICENSOR:
a. Licensee shall pay, upon delivery of the Materials, the monthly or yearly recurring subscription fee.
b. License fees do not include any shipping, duties, bank fees, sales, use, excise or similar taxes due. If Licensor is required to pay any such amounts, Licensee shall reimburse Licensor in full.
3. COPYRIGHT:
The Materials are copyrighted by Licensor.
4. OWNERSHIP:
The original and any copies of the Materials, including translations, compilations, partial copies, modifications, and updates, are the property of Licensor.
5. PROPRIETARY RIGHTS:
Licensee recognizes that Licensor regards the Materials as Licensor’s proprietary information and as confidential trade secrets of great value. Licensee agrees not to provide or to otherwise make available in any form the Materials, or any portion thereof, to any person or entity, except as noted above.
6. TERM:
The license granted hereunder shall continue for a period of one month or one year dependent on subscription length, unless terminated sooner as a result of Licensee’s breach of the terms of this Agreement.
7. WARRANTY DISCLAIMER:
LICENSOR LICENSES, AND LICENSEE ACCEPTS, THE MATERIALS "AS IS." LICENSOR PROVIDES NO WARRANTIES AS TO THE FUNCTION OR USE OF THE MATERIALS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE MATERIALS IS WITH LICENSEE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MATERIALS WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE.
8. LIMITATION OF LIABILITY
LICENSOR'S LIABILITY TO LICENSEE UNDER ANY PROVISIONS OF THIS AGREEMENT FOR DAMAGES FINALLY AWARDED SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID HEREUNDER BY LICENSEE TO LICENSOR. IN NO EVENT SHALL LICENSOR BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY.
9. NOTICES:
All notices in connection with this Agreement shall be in writing and may be given by certified, registered, or first class mail or personally delivered at the address set forth on the first page. For purposes of this Agreement, a notice shall be deemed effective upon personal delivery to the party or if by mail five days after proper deposit in a mail box.
10. SEVERABILITY:
In the event any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force as if such provision were not a part.
11. GOVERNING LAW/FORUM:
This Agreement shall be governed and interpreted by the laws of the State of Utah. Box Elder County, Utah shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder. Both parties hereby consent to such personal and exclusive jurisdiction.
12. ENTIRE AGREEMENT:
This Agreement sets forth the entire understanding between the Parties with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters. This Agreement shall take precedence over any additional or conflicting terms which may be contained in Licensee's purchase order or Licensor’s order acknowledgment forms.