End User License Agreement |
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DaVinci SOFTWARE LICENSE ("License") BY a la mode, inc.
IMPORTANT: READ BEFORE CONTINUING
THE FOLLOWING TERMS OF SERVICE (THE "AGREEMENT") DETAILS THE TERMS AND CONDITIONS FOR THE SOFTWARE SERVICES (THE "SERVICES") PROVIDED AND ADMINISTERED BY A LA MODE, INC. (REFERRED TO HEREIN AS "ALM" OR "WE"). THIS AGREEMENT CONSTITUTES A BINDING AGREEMENT BETWEEN ALM AND THE DAVINCI USER ("MEMBER" OR "YOU"). YOU MAY NOT ACCESS DAVINCI UNLESS YOU FIRST REVIEW AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. AFTER YOU REVIEW THE TERMS AND CONDITIONS BELOW, PLEASE ACKNOWLEDGE YOUR AGREEMENT BY CLICKING ON THE "AGREE" BUTTON OR THAT YOU DECLINE THIS AGREEMENT BY CLICKING ON THE "DISAGREE" BUTTON AT THE BOTTOM OF THIS PAGE.
TERMS AND CONDITIONS
1. LICENSE TERMS: ALM hereby grants Member a nonexclusive, nontransferable, restrictive and conditional right to use the Software and Online Services used in conjunction with the Software subject to the terms and conditions contained in this License. You assume full responsibility for the selection of this program to achieve your intended results, and for the installation, use, and results obtained from this program.
2. Term and Termination. This Agreement shall become effective upon your acceptance of the terms and conditions contained herein. If, in the first one hundred (100) days after your purchase of this Software, you are not satisfied for any reason, you may cancel this Agreement and receive a full refund of all fees paid. Notice of such cancellation shall be made by contacting ALM at 1-800-252-6633 (1-800-alamode) and notifying the representative that you wish to receive a refund. The notice must be made prior to 5:00 p.m. Oklahoma time on the one hundredth (100th) day after your purchase of this Software.
3. ALM reserves the right to terminate this Agreement for any reason, as
determined by ALM in its sole discretion. ALM shall have no
obligation to refund any of Member's fees due to ALM's early termination of this
Agreement.
4. USE OF THE SOFTWARE: The Software and its documentation
are for your use only. You agree not to sublicense this Software, nor make
copies of the Software or its documentation to sell or to distribute free of
charge. You may copy the program into any machine-readable or printed form for
backup or modification purposes in support of your own use of the Software on a
single machine. Certain programs, however, may contain devices to limit or
inhibit copying. You agree to take all reasonable and necessary steps to ensure
that all employees and other persons under your control do not use this Software
in contravention of the terms of this License and are aware of and abide by the
terms of this License. The Software shall be used only by you, only
for your own use and not for the benefit of any other person or entity.
5. OWNERSHIP: You have no ownership rights in the Software. Rather, you have a license to use the Software as long as this License Agreement remains in full force and effect. Ownership of the Software, Documentation and all intellectual property rights therein shall remain at all times with ALM. Any other use of the Software by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this License Agreement.
6. COPYRIGHT: The Software and Documentation contain material that is protected by United States Copyright Law and trade secret law, and by international treaty provisions. All rights not granted to you herein are expressly reserved by ALM. You shall not remove any proprietary notice of ALM from any copy of the Software or Documentation.
7. RESTRICTIONS: You may not publish, display, disclose, rent, lease, sublease, modify, loan, distribute, or create derivative works based on the Software or any part thereof. You may not reverse engineer, decompile, translate, adapt, or disassemble the Software, nor shall you attempt to create the source code from the object code for the Software. You shall not transmit the Software over any network or between any devices outside of the uses provided herein.
8. USER COMMUNICATION: ALM reserves the right to send service
e-mails notifying User of operational or other changes that may affect or change
the Services offered by ALM. Please note that you cannot opt out of such
service e-mails because these service e-mails provide information critical for
the operation of the Software.
USER HEREBY GRANTS EXPRESS WRITTEN
PERMISSION TO SEND FAX AND OR EMAIL SOLICITATIONS OR ADVERTISEMENTS, THUS
SATISFYING ANY EXPRESS WRITTEN PERMISSION REQUIREMENT.
9. AMENDMENTS/MODIFICATIONS. ALM reserves the right to amend the Service offerings and add, delete, suspend or modify the terms and conditions of the Services at any time, and to determine whether and when, at its sole discretion, any such changes apply to existing or future Members.
10. CONFIDENTIALITY: You acknowledge that the Software contains proprietary trade secrets of ALM and you hereby agree to maintain the confidentiality of the Software using at least as great a degree of care as you use to maintain the confidentiality of your own most confidential information.
11. ASSIGNMENT: You may not assign, transfer or lend the Software without ALM’s express written consent. UNAUTHORIZED DUPLICATION, TRANSFER OR SALE OF THIS SOFTWARE SHALL CONSTITUTE A VIOLATION OF COPYRIGHT LAWS AND ENTITLES ALM TO ALL REMEDIES AVAILABLE UNDER APPLICABLE LAWS.
12. VIOLATIONS OF LICENSE: Should ALM become aware of any violations of this License, the party responsible for such violations agrees to be obligated to ALM for all costs incurred to enforce this License, including reasonable attorney’s fees and court costs.
13. DISCLAIMER OF WARRANTIES: THIS SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, UNLESS SPECIFICALLY PROVIDED HEREIN. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT ALM) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
14. LIMITATION OF LIABILITY: IN NO EVENT SHALL ALM BE LIABLE TO YOU OR
ANY THIRD PARTY FOR ANY LOSS, LIABILITY, PENALTY OR DAMAGE ARISING IN ANY WAY,
EITHER DIRECTLY OR INDIRECTLY OUT OF THE USE OF THIS SOFTWARE OR ITS
DOCUMENTATION. YOU AGREE THAT IN NO EVENT SHALL ALM BE LIABLE FOR ANY SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST
PROFITS, LOST BUSINESS OPPORTUNITY OR LOST SAVINGS, THAT IN ANY WAY RELATE TO
THE USE OF ALM’s PRODUCTS. ALM’s LIABILITY SHALL IN NO WAY EXCEED THE TOTAL
AMOUNT OF YOUR LICENSE FEE THAT YOU ACTUALLY PAY FOR THE USE OF ALM’s SOFTWARE.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT
APPLY TO YOU.
15. EXPORT RESTRICTIONS: This License Agreement is expressly made subject to any laws, regulations, orders, or other restrictions on the export from the United States of America of the Software or information about such Software which may be imposed from time to time by the Government of the United States of America. You shall not export the Software, Documentation, or information about the Software and Documentation without consent of ALM and compliance with such laws, regulations, orders, or other restrictions.
16. SEVERABILITY: If any provision of this License is determined to be invalid, it will be deemed deleted and all remaining provisions will remain in full force and effect.
17. UPDATES: At ALM’s sole discretion, ALM may provide you with an update. ALM reserves the right to provide the update in exchange for payment of a fee. This License will govern all updates, copies, and merged or modified versions of the Software unless a new License is provided to you.
18. CHOICE OF LAW AND VENUE: You agree that this License shall be governed by the internal substantive laws of the State of Oklahoma, U.S.A. The Oklahoma County, State of Oklahoma, U.S.A. District Court and the United States District Court for the Western District of Oklahoma shall have sole and exclusive jurisdiction and venue over any dispute, conflict or claim arising from this License or your use of the Software. Whether you are a United States citizen or a citizen or resident of Canada or any other country, you agree to submit to the terms of this License and to the laws, jurisdiction and venue as provided by this License. By continuing with the use and implementation of the Software and related programs, you agree to submit to such laws, jurisdiction and venue as set forth herein.
19. SURVIVAL: The provisions of Sections 8, 9, 10 and 12 shall survive termination of this License.
20. The Software shall only be used for lawful purposes. Transmission or solicitation of any material that violates any local, state, federal or international law, order or regulation is prohibited.
20.1 You shall not use the Software to conduct any of the following
activities:
(a) send bulk/spam e-mail;
(b) send mass/spam news
postings;
(c) disclose the trade secrets of any other person or
entity;
(d) conduct any other activity that ALM determines, in its sole
discretion, to be fraudulent, illegal or an unreasonable drain on system
resources.
21. Security. You agree that you will not attempt to compromise the security
on the ALM servers by any means including, but not limited to:
(a)
attempting to gain access to restricted information on the ALM servers;
(b)
attempting to disable, cripple or modify ALM servers or any service running on
an ALM server; or
(c) attempting to access information in other ALM
customers’ accounts.
ALM reserves the right to prosecute any person or
entity attempting to compromise the security of the ALM servers to the fullest
extent allowed by applicable law.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE; THAT YOU UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER ACKNOWLEDGE THAT THIS LICENSE CONSTITUTES THE ENTIRE AGREEMENT BETWEEN YOU AND ALM AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL, OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS LICENSE. YOU ALSO AGREE THAT ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE APPLY TO YOUR USE OF THE SOFTWARE, SHOULD YOU CHOOSE TO PROCEED WITH THE USE AND IMPLEMENTATION OF THE SOFTWARE.
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