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AGREEMENT, YOU ARE AGREEING THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THE TERMS
AND CONDITIONS CONTAINED HEREIN, WILL ABIDE BY THIS AGREEMENT AND ARE LEGALLY
BOUND BY THIS AGREEMENT.
CAUTION: CAREFULLY READ THE TERMS OF THIS AGREEMENT (THE
"AGREEMENT") BEFORE OPENING THIS PACKAGE OR INSTALLING, COPYING OR
OTHERWISE USING THE ACCOMPANYING EVALUATION SOFTWARE, ITS LICENSE OR
DOCUMENTATION (COLLECTIVELY, "SOFTWARE"). IF YOU OR YOUR AGENT OPENS
THIS PACKAGE OR INSTALLS, COPIES OR OTHERWISE USES THE SOFTWARE, YOU ACCEPT ALL
THE TERMS OF THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF THE
TERMS OF THIS AGREEMENT ARE NOT ACCEPTABLE TO YOU OR YOUR AGENT THEN (1) DO NOT
OPEN THIS PACKAGE AND; (2)DO NOT INSTALL, COPY OR OTHERWISE USE THE SOFTWARE.
PLEASE NOTE THAT THIS AGREEMENT CONTAINS A DISPUTE ARBITRATION AGREEMENT.
PROVIDED THAT YOU OR YOUR AGENT HAS ACCEPTED AND AGREED TO
THE TERMS OF THIS AGREEMENT, KICKSTAND LLC (THE "COMPANY") GRANTS YOU
OR YOUR AGENT (COLLECTIVELY, THE "LICENSEE") A LICENSE TO USE THE
SOFTWARE AS INDICATED BELOW:
LICENSE GRANT.
Subject to the terms and conditions of this Agreement, the
Company hereby grants the Licensee a nonexclusive right to install, have
installed, execute and run the Software on the number of computers designated
on the ordering document accompanying this Agreement, solely for the purpose of
evaluation. The evaluation period is in effect for 14 days beginning from the
issuance of the evaluation license by the Company.
This is not free software. Licensee is hereby licensed to use this Software for
evaluation purposes without charge for a period of 14 days. This Evaluation Version of
the software is not to be used for any commercial undertaking. If you wish to
use this Software after the 14 day evaluation period a license must be
purchased. Unlicensed use of this Software after the 14-day evaluation period
is in violation of this agreement, U.S. and international copyright laws.
Ownership.
The Company retains all right, title and ownership of the
Software and all intellectual property rights therein. Licensee acknowledges
that the Software contains the intellectual property of the Company and that
the Software is protected by one or more U.S. or non-U.S. intellectual property
laws or treaties. Licensee may use the trademarks of the Company only to
identify output produced by the Software, in accordance with accepted trademark
practice, including identification of trademark owner's name. Such use of any
trademark does not give Licensee any rights of ownership in that trademark.
This Agreement is not a sale of the Software or any copy
thereof and Licensee has only acquired a license to evaluate the Software for
the amount of time set forth herein. The evaluation version of the software may
not be used for any commercial undertaking of any kind, only for evaluation.
SCOPE OF LICENSE GRANT.
This license applies to the EVALUATION VERSION of the
Software. One evaluation copy of the Software may be installed on a single
workstation used non-simultaneously by multiple people. You may access the
evaluation version of the Software through a network, provided that you have
obtained individual evaluation licenses for the Software covering all
workstations that will access the Software through the network. For example, if
8 different workstations access the Software on the network, each workstation
must have its own evaluation license, or use a multiple license scheme,
regardless of whether they use the Software at different times or concurrently.
Licensee may:
* with "node-locked licenses", use the evaluation
version of the Software on the computer designated by the MAC address
originally associated with that computer.
Licensee may not:
* use this evaluation version of the software for any commercial undertaking;
* permit other individuals to use the Software except under the terms
listed herein;
* make, or have made, any form of copy, whether digital, printed, photographic
or otherwise, of the Software;
* use, or have used, the Software in any form which implies any form of
endorsement by the Software, the Company (or its suppliers or its licensors)
or any individual or entity depicted in the Software;
* modify, adapt, translate, rent, lease, loan or create derivative works
from the Software;
* publish, broadcast, retransmit, reproduce, repackage, frame or commercially
exploit the Software;
* modify, translate, reverse engineer, decompose, decompile, disassemble,
or otherwise deconstruct all or any portion of the Software; or
* remove any proprietary notices or labels contained on or in the Software.
DISCLAIMER OF WARRANTY.
THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY
FUNCTIONALITY OR ITS BEING VIRUS FREE. THE LICENSEE RECOGNIZES THAT THE
"AS IS" CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE
BASIS OF THIS AGREEMENT, WITHOUT WHICH THE COMPANY WOULD NOT HAVE AGREED
TO ENTER THIS AGREEMENT. THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS
OR IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE, INCLUDING ANY WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
NO REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING THE SOFTWARE
SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY
OF THIRD PARTIES WHATSOEVER. THE LICENSEE ACKNOWLEDGES THAT HE OR SHE
HAS RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET FORTH
HEREIN.
TERMINATION.
Upon the completion of the 14-day trial period the license will expire and
licensee must purchase a full license to continue to use the software.
This license terminates automatically under conditions of non-compliance
with the limitations described herein. You agree to permanently remove
and destroy all copies of the Software upon termination from all storage
mediums.
EXPORT CONTROLS.
None of the Software or underlying information or technology may be downloaded
or otherwise exported or re-exported (1) into (or to a national or resident
of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country
to which the U.S. has embargoed goods; or (2) to anyone on the U.S. Treasury
Department's list of Specially Designated Nationals or the U.S. Commerce
Department's Table of Denial Orders. By downloading or using the Software,
you are agreeing to the foregoing and you are representing and warranting
that you are not located in, under the control of, or a national or resident
of any such country or on any such list.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT OR OTHERWISE,
SHALL THE COMPANY BE LIABLE TO THE LICENSEE OR ANY OTHER PERSON FOR ANY
DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL,
WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES
OR LOSSES EVEN IF THE COMPANY HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN,
OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS
EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. UNDER NO CIRCUMSTANCES
SHALL THE COMPANY'S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER
IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY
PAID BY THE LICENSEE UNDER THIS AGREEMENT.
ARBITRATION.
LICENSEE agrees to RESOLVE by arbitration any controversy arising between
LICENSEE and THE COMPANY AND/OR any of THE COMPANY'S respective CONTROL
PERSONS, predecessors, subsidiaries, affiliates, successors, assigns and
employees. With respect to the resolution of any such controversy, Licensee
further acknowledges that: (1) arbitration is final and binding on the
parties, (2) the parties are waiving their right to seek remedies in court,
including the right to jury trial, (3) pre-arbitration discovery is generally
more limited than and different from court proceedings and (4) the arbitrators'
award is not required to include factual findings or legal reasoning and
any party's right to appeal or to seek modification of rulings by the
arbitrators is strictly limited. Any arbitration under this Agreement
shall be conducted in New York City before a panel of three (3) arbitrators
pursuant to the JAMS Comprehensive Arbitration Rules and Procedures, except
to the extent that such rules are modified by this User Agreement. Arbitration
is initiated by a party serving the other party with a written demand
for arbitration or a written notice of intention to arbitrate. No person
shall bring a putative or certified class action to arbitration nor seek
to enforce any pre-dispute arbitration agreement against any person who
has initiated in court a putative class action or who is a member of a
putative class who has not opted out of the class with respect to any
claims encompassed by the putative class action until: (a) the class certification
is denied; (b) the class is decertified; or (c) the customer is excluded
from the class by the court. Such forbearance to enforce an agreement
to arbitrate shall not constitute a waiver of any rights under this Agreement
except to the extent stated herein.
MISCELLANEOUS.
Company may assign this Agreement in whole or in part at any time without
the Licensee's consent. Licensee may not assign or transfer this Agreement
or the license granted herein. Any transaction pursuant to which legal
or equitable title to more than fifty percent of the capital stock (or
other equity interest) of Licensee is transferred or more than fifty percent
of the business or assets of Licensee is sold, or any change in control
of Licensee, direct or indirect, or any other sale or other transfer in
whole or in part of Licensee's business shall be deemed an assignment
in violation of this Section.
This Agreement represents the complete agreement by the parties concerning
the license granted hereunder and supersedes all prior negotiations, representations
and agreements, whether written or oral, between the parties. No other
agreement, statement or promise not contained in this Agreement, and no
changes or modifications to this Agreement, shall be effective unless
it is in writing and executed by both parties. If any provision of this
Agreement is held to be unenforceable, such provision shall be reformed
only to the extent necessary to make it enforceable.
Any issue concerning the extent to which any dispute is subject to arbitration,
or concerning the applicability, interpretation, or enforceability of
these procedures, including any contention that all or part of these procedures
are invalid or unenforceable, shall be governed by the Federal Arbitration
Act and resolved by the arbitrators. All other issues shall be governed
by New York law, without giving effect to its conflict of laws, except
for Section 5-1401 of the New York General Obligations law which shall
apply. The application of the United Nations Convention of Contracts for
the International Sale of Goods is expressly excluded.
Nothing in this Agreement, either express or implied is intended or shall
be construed to confer upon or to give any person, firm or corporation,
except the parties hereto, any rights or remedies under or by reason of
this Agreement.
If you have any questions regarding this Agreement, you may contact Kickstand
LLC by e-mail at info@kickstandlabs.com.
ELECTRONIC SIGNATURE.
PLEASE NOTE THAT THIS AGREEMENT CONTAINS A DISPUTE ARBITRATION AGREEMENT.
THE ABOVE DISCLOSURES SHOULD BE CAREFULLY READ, UNDERSTOOD AND ACCEPTED
BY YOU BEFORE YOU SIGN THIS AGREEMENT.
PLEASE CLICK "I AGREE" BELOW TO SIGN THIS AGREEMENT AND THEREBY
LEGALLY BIND YOURSELF TO THE TERMS AND CONDITIONS CONTAINED HEREIN.
CLICKING "I AGREE" IS THE EQUIVALENT OF YOU MANUALLY SIGNING
THIS AGREEMENT.
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