THIS IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION ("YOU" OR "CUSTOMER") THAT HAS LICENSED THIS SOFTWARE AND MATERIALS, AND IT STATES THE TERMS AND CONDITIONS UPON WHICH ABWT, INC. OFFERS TO LICENSE TO YOU THE RIGHT TO USE THE SOFTWARE AND LICENSED MATERIALS. AMONG OTHER THINGS, THIS AGREEMENT CONTAINS WARRANTY DISCLAIMERS. BY USING THE ABWT SOFTWARE, YOU ARE AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT DO NOT USE THE SOFTWARE AND LICENSED MATERIALS, AND PROMPTLY RETURN THE PRODUCT TO THE PLACE WHERE YOU OBTAINED IT. THIS AGREEMENT APPLIES TO ALL SOFTWARE AND LICENSED MATERIALS PROVIDED BY ABWT, INC. NO LICENSE IS GRANTED TO ANY OTHER ABWT SOFTWARE AND LICENSED MATERIALS UNDER THIS AGREEMENT
Section 1. Definitions
- "ABWT" means Basic Right Over Wrong, ABWT, Inc. and its licensors and affiliates, if any.
- "Licensed Materials" or "Software" means, collectively, any ABWT, Inc. Software programs, including but not limited to, ABWT Online Curriculum Software, Music, the object code, data, software components, third party software programs, and any other program, application, documentation, associated media, printed materials, books and online or electronic documentation supplied by ABWT. Any updates to such Software that you are entitled to receive and that has been provided to you by ABWT shall also mean Software for purposes of this Agreement. Any reference to Licensed Materials shall also include Software, and vice versa.
- "Object Code" means the binary machine-readable version of the Software.
- "Source Code" means those statements in a computer language, which when processed by a compiler, assembler, or interpreter become executable by a computer.
- "Update(s)" means any improvement to or change in the Software that alters the original functional characteristics provided to You. Unless otherwise agreed to in writing by ABWT, all title, ownership, and intellectual property rights to the update shall vest solely and exclusively with ABWT. Your sole interest in the updates is a limited license to use the updates subject to the terms and conditions of this Agreement.
Section 2. License Grants
- Ownership. The Software (including all content), documentation and all related materials accompanying the Software, whether on disk, in read only memory, by download, any other media or in any other form is licensed, not sold, to you by ABWT for use under the terms of this License, and ABWT reserves all rights not expressly granted to you herein and retains all rights, title and interest, including all copyright and intellectual property rights, in and to, the Software. The rights granted herein are limited to ABWT and its licensor’s intellectual property rights in the Software and do not include any other patents or intellectual property rights. The terms of this license will govern any updates provided by ABWT that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.
- Mandatory Product Activation. You acknowledge that the software contains and requires a license key. The license rights granted under this Agreement shall be limited to Three-hundred and sixty four (364) calendar days after you first install and activate the Software by supplying information and license fee required in the manner described during the purchase or setup sequence of the Software. Your license will automatically expire upon the end of 365 calendar days after activation, unless expressly stated otherwise. You may need to activate the Software through the use of the Internet or telephone to obtain a license key; toll charges may apply. In the event you subsequently renew your license, ABWT will provide you an additional license key. You agree not to purchase any license keys or similar computer code for the ABWT software from any source other than ABWT or ABWT’s authorized resellers.
- There are technological measures in this Software that are designed to prevent unlicensed or illegal use of the Software. You agree that ABWT may use those measures and you agree to follow any requirements regarding such technological measures. You may also need to reactivate the Software if you modify your computer hardware, alter the Software, or install the Software on another computer. Product activation may be based on the exchange of information between your computer and ABWT.
- Grant of License. Your rights in and to the Software or Licensed Materials are solely as set forth in this Agreement and do not include any rights of ownership. You agree that, as between ABWT and You, ABWT owns all right, title and interest (including without limitation all copyright, patent, trade secret and other intellectual property rights) to the Software or Licensed Materials. All rights not specifically granted in this Agreement, including International Copyrights, are reserved for ABWT.
- Scope of Licenses.
- ABWT hereby grants You a limited, personal, non-exclusive, non-transferable, non-assignable license to install and use the Software on a single (1) computer operated by or for You at a time, and subject to the provisions of this Agreement as well as payment of all applicable license fees for the term of the license. You may install and use the Software on a single computer; OR install and store the Software on a storage device, such as a network server, used only to install the Software on your other computers over an internal network, provided you have a license for each separate computer on which the Software is installed and run. Except as otherwise specifically provided in Section 2, a license for the Software may not be shared, installed or used concurrently on different computers or on a network where it could be used by multiple computers at the same time. You may not provide or make available by any means the license keys to any third parties.
- Limitations on Licenses.
- Internal Use Only. YOU ARE NOT AUTHORIZED TO USE THE LICENSED MATERIALS FOR ANY PURPOSE IN V IOLATION OF ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS. THIS LICENSE IS FOR INTERNAL USE ONLY.
- Prohibited Activities. You shall NOT (i) assign, transfer, lease, rent, distribute sublicense, redistribute, or resell the Licensed Materials in any manner; (ii) modify or create any derivative work based on the Licensed Materials; (iii) reverse assemble, decompile, reverse engineer or attempt to derive source code, the underlying ideas, algorithms, structure or organization of the Licensed Materials; (iv) copy the Licensed Materials, except for your individual, personal, and confidential use; (v) resell or provide the Software to a third party. In addition, the software may not be downloaded, exported, re-exported, or transferred to an end-user engaged in activities related to weapons of mass destruction.
- Backup Copy. You may make one machine-readable form for backup purposes only, provided that the backup copy must include all copyright or other proprietary notices contained on the original. You may not sell or transfer any copy of the software made for backup purposes.
- Subject to the terms and conditions of this Agreement, in the event the Software is distributed along with other ABWT software products as part of a suite of products (collectively, the "Studio"), the license of the Studio is licensed as a single product and none of the products in the Studio, including the Software, may be separated for installation or use on more than one computer. In addition, you may not distribute the Studio or any portion thereof the purpose of which is to replay the courseware, presentations, interactive multimedia material, interactive entertainment products and the like of others.
- Audit. You agree that ABWT may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse ABWT for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.
- Consent to use of data. You agree that ABWT and its subsidiaries may collect and use technical and related information, including but not limited to technical information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Software. ABWT may use this information, as long as it does not personally identify you, to improve its products or to provide services to you.
- Export Restrictions. You shall not use or otherwise export or re-export the Software except as authorized by United States laws and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported into any U.S. embargoed countries or to any of the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purpose prohibited by United States law.
- Government. The Licensed Materials are a "commercial item," as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4. The Commercial Computer Software and Commercial Computer Software Documentation are being licensed to all U.S. Government end users only as Commercial Items and with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
Section 3. Technical Support and Maintenance
- Except as may be provided in a separate agreement between ABWT and You, if any, ABWT is under no obligation to maintain or support the Software and ABWT has no obligation to furnish you with any further assistance, documentation, software, update, upgrades, or information of any nature or kind.
Section 4. Confidentiality
- Confidentiality. The Licensed Materials, their structure, organization and code, contain valuable trade secrets of ABWT. Except as expressly set forth above, You agree to use reasonable efforts not to disclose or otherwise make available the Licensed Materials to any third parties and not to use, directly or indirectly, or in concert with any other person, the Licensed Materials other than for the purposes authorized by this Agreement. This obligation shall continue after any termination of this Agreement. You shall return all Licensed Materials promptly upon the request of ABWT or upon any termination of this Agreement.
- Equitable Remedy. You acknowledge that due to the unique nature of ABWT 's Confidential Information, ABWT will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of ABWT 's Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, ABWT shall be entitled to obtain any injunctive relief that may be appropriate to prevent such unauthorized use or disclosure.
- Term of Nondisclosure Obligations. Your obligations set forth in this Section 4 will survive for a period of five (5) years after the termination of this Agreement, and will bind Your representatives, successors and assigns, if any; provided, however, that such obligations will terminate with respect to any Confidential Information which becomes available for unrestricted public use through no fault of You.
Section 5. Disclaimer of Warranties
- Limited warranty on media. ABWT warrants the media on which the Licensed Materials is recorded and delivered by ABWT to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of the original retail purchase. Your exclusive remedy under this Section shall be, to use reasonable commercial efforts, at ABWT’s option, to supply a refund of the purchase price of the product containing the ABWT software, supply a replacement copy of the ABWT software which substantially conforms to the documentation, or provide a replacement for defective media, if the product is returned to ABWT or an ABWT authorized representative together with proof of purchase and a description of the problem. ABWT shall have no responsibility if the Software has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software with other than a recommended hardware configuration. Any misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. THIS LIMITED WARRANTY AND IMPLIED WARRANTY ON THE MEDIA INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF THE ORIGINAL RETAIL PURCHASE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LAST, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION, PACKAGE, OR OTHERWISE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY BY JURISDICTION. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION.
- Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE ABWT SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU, EXCEPT FOR THE LIMITED WARRANTY ON MEDIA SET FOR ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ABWT SOFTWARE IS PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND ABWT, ITS LICENSORS, DISTRIBUTORS, AND AFFILIATES (COLLECTIVELY "ABWT") HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE ABWT SOFTWARE AND LICENSED MATERIALS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OR SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. ABWT DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR USE OR ENJOYMENT OF THE ABWT SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE ABWT SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE ABWT SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE ABWT SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ABWT, ABWT AUTHORIZED REPRESENTATIVES OR ITS AFFILIATES SHALL CREATE A WARRANTY. SHOULD THE ABWT SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Section 6. Limitation of Liability
- TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL ABWT BE LIABLE TO YOU OR ANY THIRD PARTY FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE ABWT SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF ABWT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY FOR FAILURE BY ABWT TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND ITS REASONABLE CONTROL, OR CLAIMS MADE A SUBJECT OF LEGAL PROCEEDING AGAINST ABWT MORE THAN TWENTY-FOUR (24) MONTHS AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. ABWT SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILTY FOR PERSONAL INJURY, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall ABWT total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of the licenses fees paid by you. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Section 7. Indemnification
- By ABWT. Indemnification by ABWT shall be limited to the provisions herein.
- Limitations. ABWT shall have no obligation to You with respect to any action based on (i) the combination, operation or use of the Licensed Materials with other products or content not furnished by ABWT where the Licensed Materials otherwise would not themselves be infringing; (ii) use of other than a current unaltered version or release of the Licensed Materials, provided that such version or release had been available to You on commercially reasonable terms, or (iii) the infringement or alleged infringement of a third party's rights by use of the Licensed Materials with content not owned by or properly licensed to You.
- Options. If any of the Licensed Materials become, or in the opinion of ABWT may become, the subject of a claim of infringement, ABWT may, at its option: (i) procure for You the right to use such Licensed Materials free of any liability; (ii) replace or modify such Licensed Materials to make them non-infringing; or (iii) remove such Licensed Materials, or any part thereof, from the scope of this Agreement. ABWT shall not be liable for any costs or expenses incurred by You in connection with any potential or actual claim of infringement without its prior written authorization.
THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF ABWT FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
- By You.
- You, at Your own expense, shall defend ABWT, and its officers, directors, employees, representatives and agents, against any action brought against such person based upon your use of the Licensed Materials or based upon or related to content posted to the Internet, Your Intranet, or elsewhere using the Licensed Materials, and shall pay all settlements entered into and damages awarded against You and/or ABWT (including reasonable attorneys' fees) to the extent based on such action.
- Procedure. All indemnification obligations under this Section 7 shall be subject to the following requirements: (a) the indemnified party shall provide the indemnifying party with prompt written notice of any claim; (b) the indemnified party shall permit the indemnifying party to assume and control the defense of any action; and (c) the indemnified party shall not enter into any settlement or compromise of any claim without the indemnifying party's prior written consent. In addition, the indemnified party may, at its own expense, participate in the defense of any claim.
Section 8. Term and Termination
- This Agreement is effective until terminated. Except for Sections 2, 4, 5, 6, 7, 8 and 9 as well as any payment obligations, which shall survive any termination of this Agreement, this Agreement shall continue until Your breach of this Agreement. Upon termination, all licenses granted in this Agreement shall terminate and You agree not to use the Licensed Materials for any purpose whatsoever and to return to ABWT or destroy and uninstall any and all copies of the Licensed Materials within your possession. This remedy shall be in addition to any other remedies available to ABWT.
Section 9. General Provisions
- Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between ABWT and You.
- Amendment and Waiver. No amendment to, or waiver of, any provision of this Agreement shall be effective unless in writing and signed by both parties. The waiver by any party of any breach or default shall not constitute a waiver of any different or subsequent breach or default.
- Application of Georgia Law. This Agreement and its application and interpretation shall be governed exclusively by its terms and by the laws of the State of Georgia. The United Nations Convention on Contracts for the Sale of Goods does not apply to this Agreement.
- Venue. The proper venue for any proceeding at law or in equity or under the provisions for arbitration shall be Bibb County, Georgia, and the parties hereby waive any right to object to the venue.
- Prevailing Party. The prevailing party in any legal action brought by one party against the other and arising out of this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court and arbitration costs, as well as reasonable attorney fees.
- Successors and Assigns. This Agreement and the licenses granted hereunder may not be assigned by You, in whole or in part, by operation of law or otherwise, without the prior written consent of ABWT. Any attempt by You to assign this Agreement without such consent will be null and void. This Agreement shall be binding upon, and inure to the benefit of, the permitted successors and assigns of ABWT.
- Notices. All notices, requests, consents and other communications which are required or permitted hereunder shall be in writing, and shall be delivered by registered U.S. mail, postage prepaid (effective three (3) days after mailing) or sent by facsimile or electronic mail, with a confirmation copy simultaneously sent by U.S. mail, postage prepaid (effective upon transmission), at the addresses provided by the other party in writing. If such notice is to ABWT, it shall be addressed to: ABWT, Inc., P.O. Box 4401 , Macon, Georgia 31208. Notice of change of address shall be given in the same manner as other communications.
- Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
- Entire Agreement. This Agreement, represents the entire agreement between ABWT and You with respect to the subject matter hereof and shall supersede all prior agreements and communications of the parties, oral or written.