Use and Access and corresponding Obligations
A. Subject to the restrictions on use as set forth herein, Licensee will have access to the Software and Licensor's application server for the purpose of using the software for its intended purpose and in accordance with the specifications set forth in any documentation relating to the Software provided by Licensor. Such use and access will be on a continuous twenty four (24) hour basis except for interruptions by reason of maintenance or downtime beyond Licensor's reasonable control.
B. Licensee will use the Software only for its internal business operations and will not permit the Software to be used by or for the benefit of anyone other than Licensee. Licensee will not have the right to re-license or sell rights to access and/or use the Licensed Software or to transfer or assign rights to access or use the Software, except as expressly provided herein. Licensee may not modify, translate, reverse engineer, decompile or create derivative works based upon the Software. Licensee agrees to use the Software in a manner that complies with all applicable laws including intellectual property and copyright laws. Licensor expressly reserves all rights not expressly granted to Licensee herein.
C. Licensee will not: (i) transmit or share identification or password codes to persons other than authorized users (ii) permit the identification or password codes to be cached in proxy servers and accessed by individuals who are not authorized users, or (iii) permit access to the software through a single identification or password code being made available to multiple users on a network.
D. The licensor shall not be liable for any illegal licensee activity that may or may not relate to the use of licensor’s software or servers. Furthermore, the licensee agrees to pay all legal fees, accounting expenses, costs, etc. that Licensor may incur as a result of any investigation that has begun as a result of Licensee’s work or conduct. The licensee agrees to have sufficient controls and protocols in place so as to insure that Licensee complies with the laws that regulate their industry and business. The Licensee hereby agrees to reimburse all expenses that Licensor may have to incur as a result of any conduct of Licensee. Furthermore, Licensee agrees that Licensor may file all liens, terminate all services, etc. when Licensor is made aware of any investigation whatsoever. Licensee hereby agrees and understands that NO fees will be refunded if Licensor has to terminate services for any such cause.
E. All modifications requested by the licensee can be used in futures releases of the Software.
Licensor will supply telephone support regarding the Software to Licensee on a reasonable and necessary basis during normal weekday business hours, excluding legal holidays. Additionally, Licensor will, if necessary, provide reasonable support to Licensee through electronic and/or written correspondence.
A. Licensee acknowledges that the Software and other data on Licensor's application server embodies logic, design and coding methodology that constitute valuable confidential information that is proprietary to Licensor. Licensee will safeguard the right to access the Software and other software installed on Licensor's application server using the same standard of care that Licensee uses for its own confidential materials.
B. All data pertaining to Licensee disclosed to Licensor in connection with the performance of this Agreement and residing on Licensor's application server will be held as confidential by Licensor and will not, without the prior written consent of Licensee, be disclosed or be used for any purposes other than the performance of this Agreement. Licensor will safeguard the confidentiality of such data using the same standard of care that Licensor uses for its own confidential materials. This obligation does not apply to data that: (i) is or becomes, through no act or failure to act on the part of Licensor, generally known or available; (ii) is known by Licensor at the time of receiving such information as evidenced by its written records; (iii) is hereafter furnished to Licensor by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by Licensor as evidenced by its written and dated records and without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by Licensee. Further notwithstanding the forgoing, disclosure of data will not be precluded if such disclosure: (i) is in response to a valid order of a court or other governmental body of the United States or foreign country; (ii) is otherwise required by law; or (iii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.
Warranty and Disclaimer
Licensor warrants the Software is developed and will be provided in conformity with generally prevailing industry standards. Licensee must report any material deficiencies in the Software to Licensor in writing within thirty (30) days of Licensee's discovery of the defect. Licensor's exclusive remedy for the breach of the above warranty will be for Licensor to provide access to replacement Software within a commercially reasonable time. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. DEVELOPER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES.
Limitation of Liability, Indemnification
Neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the use of the Software, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages. Licensee will indemnify and hold Licensor harmless against any claims incurred by Licensor arising out of or in conjunction with Licensee's breach of this Agreement, investigations that are a result of Licensee’s behavior or lack thereof as well as all reasonable costs, expenses and attorneys' fees incurred therein. Licensor's total liability under this Agreement with respect to the Software, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by Licensee to Licensor during the twelve month period immediately preceding the occurrence or act or omission giving rise to the claim.
Relation of Parties
Nothing in this Agreement will create or imply an agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party, and such consent will not be unreasonably withheld. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein
Ownership of Intellectual Property
Title to any proprietary rights in the Software or Licensor's web site will remain in and be the sole and exclusive property of Licensor. Licensee will be the owner of all content created and posted by Licensee.
Copyrights and Trademarks
A. All materials contained on the Web Site are copyrighted for Expert Solutions, Inc. All Rights Reserved.
B. No person is authorized to use, copy or distribute any portion the Web Site including related graphics.
Links to Third-Party Web Site
Expert Solutions, Inc. may provide hyperlinks to third-party web sites as a convenience to users of the Web Site. Expert Solutions, Inc. does not control third-party web sites and is not responsible for the contents of any linked-to, third-party web sites or any hyperlink in a linked-to web site. Expert Solutions, Inc. does not endorse, recommend or approve any third-party web site hyperlinked from the Web Site. Expert Solutions, Inc. will have no liability to any entity for the content or use of the content available through such hyperlink.