iSky Software licence Agreement as of 1st July 2010
BY USING SOFTWARE FROM ISKY SOFTWARE, THE INDIVIDUAL OR ENTITY LICENSING THE SOFTWARE ("LICENCEE") IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENCEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE LICENCEE MUST NOT INSTALL OR USE ANY OF THE SOFTWARE DEVELOPED BY iSky Software.
1. LICENCE AGREEMENT.
In this Agreement "Licensor" shall mean iSky Software except under the following circumstances: (i) if licencee acquired the Software as a bundled component of a third party product or service, then such third party shall be Licensor; and (ii) if any third party software is included as part of the default installation and no licence is presented for acceptance the first time that third party software is invoked, then the use of that third party software shall be governed by this Agreement, but the term "Licensor," with respect to such third party software, shall mean the manufacturer of that software and not iSky Software. With the exception of the situation described in (ii) above, the use of any included third party software product shall be governed by the third party's licence agreement and not by this Agreement, whether that licence agreement is presented for acceptance the first time that the third party software is invoked, is included in a file in electronic form, or is included in the package in printed form. If more than one licence agreement was provided for the Software, and the terms vary, the order of precedence of those licence agreements is as follows: a signed agreement, a licence agreement available for review on the iSky Software website, a printed or electronic agreement that states clearly that it supersedes other agreements, a printed agreement provided with the Software, an electronic agreement provided with the Software.
2. LICENCE GRANT.
This licence does not entitle licencee to receive from iSky Software hard-copy documentation, technical support, telephone assistance, or enhancements or updates to the Software unless a specific Software has been purchased by the licencee that clearly states otherwise. Licensor warrants that it has the right to grant the foregoing licence free and clear of third party intellectual property claims, and should any third party intellectual property claims arise Licensor will defend and hold licencee harmless from such claims.
3. RESTRICTIONS
Except as otherwise expressly permitted in this Agreement, or in another Licensor agreement to which licencee is a party such as a distribution agreement, licencee may not: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software (except to the extent applicable laws specifically prohibit such restriction); (ii) redistribute, encumber, sell, rent, lease, sublicence, or otherwise transfer rights to the Software; (iii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; or (iv) publish any results of benchmark tests run on the Software to a third party without Licensor's prior written consent.
4. FEES
There is no licence fee for the Software as long as all action has been taken with regard to the free Software instructions and the product is being used on a non-profit basis. Appropriate licence fees are applicable if the product is being used directly or indirectly in any commercial application. Multiple copies of the product will each require separate licences. If licencee wishes to receive the Software on media, there may be a small charge for the media and for shipping and handling.
5. TERMINATION
Without prejudice to any other rights, Licensor may terminate this Agreement if licencee breaches any of its terms and conditions. Upon termination, licencee shall destroy all copies of the Software.
6. PROPRIETARY RIGHTS.
Title, ownership rights, and intellectual property rights in the Software shall remain in iSky Software and/or its suppliers. licencee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with iSky Software or its suppliers' ownership of or rights with respect to the Software. The Software is protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Software is the property of the applicable content owner and is protected by applicable law. The licence granted under this Agreement gives licencee no rights to such content.
7. THE GUARANTEE
You accept that no Software is error free and you are strongly advised to back-up your files regularly. Provided that you have a valid licence, iSky Software guarantees that a) for a period of 90 days from the date of receipt of your licence to use the Software or the shortest period permitted by applicable law it will perform substantially in accordance with the written materials that accompany the Software; and b) any support services provided by iSky Software shall be substantially as described in applicable written materials provided to you by iSky Software and iSky Software support engineers will use reasonable efforts, care and skill to solve any problem issues. In the event that the Software fails to comply with this guarantee, iSky Software will either (a) repair or replace the Software or (b) return the price you paid. This guarantee is void if failure of the Software results from accident, abuse or misapplication. Any replacement Software will be guaranteed for the remainder of the original guarantee period or 30 days, whichever period is longer. You agree that the above guarantee is your sole guarantee in relation to the Software and any support services.
8. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENCEE PAID FOR THIS LICENCE (IF ANY) AND FEES FOR SUPPORT OF THE PRODUCT RECEIVED BY ISKY SOFTWARE UNDER A SEPARATE SUPPORT AGREEMENT (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. ISKY SOFTWARE IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENCEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
9. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. (b) This Agreement may be amended only by a writing signed by both parties. (f) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (g) The controlling language of this Agreement is English. If licencee has received a translation into another language, it has been provided for licencee's convenience only. (h) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (i) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination. (j) licencee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of licencee's assets to another entity. (k) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (l) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (m) The relationship between Licensor and licencee is that of independent contractors and neither licencee nor its agents shall have any authority to bind Licensor in any way. (n) If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith. (o) If any iSky Software professional services are being provided, then such professional services are provided pursuant to the terms of a separate Professional Services Agreement between iSky Software and licencee. The parties acknowledge that such services are acquired independently of the Software licenced hereunder, and that provision of such services is not essential to the functionality of such Software. (p) The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning. (q) Licensor may use licencees name in any customer reference list or in any press release issued by Licensor regarding the licensing of the Software and/or provide licencees name and the names of the Software licenced by licencee to third parties.