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YOUNTS CONSULTING INC SOFTWARE LICENSE AGREEMENT
IMPORTANT – READ CAREFULLY
CAUTION: IF YOU PROCEED TO INSTALL THIS SOFTWARE, THE FOLLOWING TERMS WILL APPLY. IF THESE TERMS ARE NOT ACCEPTABLE TO YOU, PLEASE CONTACT THE PROVIDER OF THE SOFTWARE, YOUNTS CONSULTING, INC.
YOUNTS CONSULTING, INC. (“YOUNTS”) GRANTS TO YOU A LICENSE TO USE THE ENCLOSED SOFTWARE (“SOFTWARE”) AND ACCOMPANYING DOCUMENTATION (“DOCUMENTATION”) (COLLECTIVELY, THE “PRODUCTS”) AS INDICATED BELOW:
1. License Grant. Younts grants to you a perpetual (subject to Section 3 “Termination”), nonexclusive, non-transferable license to install and use the Software. The Software may only be reproduced, installed and used on the number of servers and clients which you have licensed and paid for, as set forth in the Product Use Certificate that Younts has provided to you with the Products. You may make one (1) copy of the Products for back-up purposes; otherwise, you may not reproduce any part of the Products. You shall not: (i) cause or permit any reverse engineering, de-compilation, modification, adaptation, translation or disassembly of the Software, or create any derivative works based on the Products; (ii) sell, rent, lease, timeshare, lend, sublicense, distribute, assign or otherwise transfer any rights in the Products or under this Agreement without Younts’ prior written consent; or (iii) disclose results of any benchmark tests of any Software to any third party without Younts’ prior written consent.
2. Trademarks, Logo, Copyright & Title. All title and copyrights in and to the Products and the media containing the Products is owned by Younts and/or its licensors, and the Products’ structure, organization, sequence and source code are the valuable trade secrets of Younts and/or its licensors. Younts represents and warrants that it has all necessary rights to license the Products and to undertake the obligations pursuant to this Agreement. You acknowledge that no title to the intellectual property in the Products is transferred to you, and that you do not obtain any rights, express or implied, in the Products or the media containing the Products other than the rights expressly granted in this Agreement. You agree to retain on the Products and any permitted back-up copies of the Products, all product identifications and patent, copyright, trademark and other proprietary notices contained on the Products as delivered to you hereunder.
3. Termination. This Agreement may be terminated immediately by Younts if, after written notice is given to you setting out the details about a breach or failure to comply with any of the terms and conditions of this Agreement, you fail to reasonably remedy such breach or failure within 30 days of such notice. Upon termination, you shall immediately remove and destroy all copies of the Products or any part thereof. The provisions of this Agreement, other than the license grant contained in Section 1 hereof, shall survive termination.
4. New Releases and Maintenance. Upon payment by you of the applicable fee, for a period of one (1) year from the date of purchase, Younts will provide support and maintenance, including new releases, enhancements, or updates of the Products, in accordance with the Younts Software Maintenance Service (“SMS”) Summary of Terms that Younts has provided to you with the Products. You may renew support and maintenance for successive one year periods by payment of the then applicable fee. For additional information on the Younts Software Maintenance Service, contact Younts’ Licensing Department at 202-588-2000 Ext. 0.
5. LIMITED WARRANTY.
a. YOUNTS WARRANTS THAT FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF DELIVERY TO YOU: (A) THE MEDIA ON WHICH THE SOFTWARE IS FURNISHED WILL BE FREE OF DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE AND (B) THE UNMODIFIED SOFTWARE WILL PERFORM SUBSTANTIALLY THE FUNCTIONS DESCRIBED IN THE DOCUMENTATION WHEN OPERATED ON THE DESIGNATED COMPUTER AND OPERATING SYSTEM. YOUNTS DOES NOT WARRANT THAT THE SOFTWARE WILL WORK IN COMBINATION WITH OTHER PRODUCTS USED BY YOU, THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT OPERATION OF THE SOFTWARE WILL BE ERROR-FREE, OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. If, within such thirty (30) day period, you report a Software error which represents a failure of this warranty, Younts will, at its option, (i) correct or provide a reasonable workaround for the error; (ii) provide a replacement of the Software which complies with the warranty; or (iii) upon return of the Software to Younts, refund the license fees paid. Younts will replace any defective media without charge if it is returned to Younts within such thirty (30) day period.
b. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, YOUNTS MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO PERSON, DEALER, OR COMPANY MAY EXPAND OR ALTER THIS WARRANTY. The limited warranties in this Section 5 shall not apply to any defects which are caused by (i) modifications of the Products made by any party other than Younts; (ii) a failure of your hardware or other software to function normally in conjunction with the Products where such failure is not directly caused by the Products; or (iii) your failure to use the Software according to the Documentation. The remedies set forth in this Section 5 set forth your sole and exclusive remedies, and Younts’ sole and exclusive liability, for any breach of the limited warranties provided in this Agreement.
c. Some states or jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you. To the extent permissible, any implied warranties are limited to thirty (30) days. This warranty gives you specific legal rights. You may have other rights which vary from state to state or jurisdiction to jurisdiction. For further warranty information, contact Younts at 202-588-2000.
6. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY OR YOUNTS’ LICENSORS HAVE ANY LIABILITY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS, REVENUES, SAVINGS OR DATA, ARISING OUT OF THE USE, DELIVERY, OR PERFORMANCE OF THE PRODUCTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. THIS LIMITATION SHALL APPLY TO CLAIMS OF PERSONAL INJURY TO THE EXTENT PERMITTED BY LAW. IN NO EVENT WILL YOUNTS OR ITS LICENSORS’ AGGREGATE LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY, EXCEED THE LICENSE FEE PAID BY YOU. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, so the above exclusions and limitations may not apply to you.
7. Export. You agree that you will not export or re-export the Products outside of the jurisdiction in which you obtained it without the appropriate United States or foreign government licenses.
8. Integration. This Agreement, the accompanying Product Use Certificate and the Younts Software Maintenance Subscription Summary of Terms embrace the full and complete understanding of the parties as to the subject matter hereof, and they supersede and govern all prior or contemporaneous proposals, agreements or other communications, written or oral, between the parties regarding such subject matter. This Agreement may not be altered or modified, except by written amendment which expressly refers to this Agreement and which is duly executed by an officer of Younts. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
9. Choice of Law. This Agreement shall be construed and governed in accordance with the laws of the State of California, excluding the application of its conflicts of law rules. This Agreement will not be governed by the United Nations Convention on the Contracts for the International Sale of Goods.
10. US Government RESTRICTED RIGHTS. If the Products are acquired under the terms of a proposal or agreement with the United States government or any contractor therefore, the Products are subject to the following: (a) For acquisition by or on behalf of civilian agencies, as necessary to obtain protection as “commercial computer software” and related documentation in accordance with the terms of this commercial Software Agreement as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; (b) For acquisition by or on behalf of units of the Department of Defense (“DoD”) as necessary to obtain protection as “commercial computer software” and related documentation in accordance with the terms of this commercial computer software license as specified in 48 C.F.R. 227-7202-2 of the DoD F.A.R. Supplement and its successors. All U.S. Government end users acquire the Products with only those rights set forth in this Agreement.
11. Tax Liability. You are responsible for paying any sales or use tax imposed at any time whatsoever on this transaction.
By agreeing to download the software license, you acknowledge that you have read this Agreement, understand it, and agree to be bound by its terms and conditions. If you have any questions, contact Younts 202-588-2000.