EXTRAVIEW CORPORATION'S SOFTWARE PROGRAMS ARE COPYRIGHTED AND LICENSED ON A NONEXCLUSIVE BASIS. EXTRAVIEW CORPORATION DOES NOT SELL OR TRANSFER TITLE OF EXTRAVIEW TO YOU OR YOUR COMPANY. YOUR LICENSE OF EXTRAVIEW WILL NOT COMMENCE UNTIL YOU HAVE AGREED TO THIS LICENSE, AND EXTRAVIEW CORPORATION SIGNIFIES ITS AGREEMENT BY RETURNING EXTRAVIEW ACCESS INFORMATION TO THE EMAIL ADDRESS YOU SUPPLY.
1. License. This License replaces the ExtraView License that is agreed to by customers that pay a license fee to use ExtraView. ExtraView Corporation grants Company a nonexclusive license to Use its software product known as ExtraView Standard edition, free of charge for up to five users. "Use" means accessing or displaying the Software. Company may not modify the Software, or disable any licensing or control features of the Software. Company may not allow more than the maximum number of authorized, licensed users to Use the Software, with the exception of guest users whose use of the software is limited to submitting new issues, and viewing information about issues they have submitted.
ExtraView Corporation reserves the right, in its sole discretion, to accept, reject and deny service to parties wishing to participate in this promotional program.
2. Proprietary Protection and Restrictions. ExtraView Corporation shall have sole and exclusive ownership of all right, title, and interest in and to ExtraView and all modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to Company herein by ExtraView Corporation. This Agreement does not provide Company with title or ownership of ExtraView, but only a right of limited use. Company must keep ExtraView free and clear of all claims, liens, and encumbrances.
Company may not use, copy, modify, or distribute ExtraView (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by ExtraView Corporation. Company may not reverse engineer, dissemble, reverse compile, or otherwise translate ExtraView. Company's rights may not be transferred, leased, assigned, or sublicensed except for a transfer of ExtraView in its entirety to a successor in interest of Company's entire business who assumes the obligations of this Agreement. No service bureau work, multiple-user license, or time-sharing arrangement is permitted, except as expressly authorized by ExtraView Corporation. Company may not publicize the results of any benchmark tests run on ExtraView. If Company uses, copies, or modifies ExtraView or if Company transfers possession of any copy, adaptation, transcription, or merged portion of ExtraView to any other party in any way not expressly authorized by ExtraView Corporation, Company's license is automatically terminated.
Company acknowledges that, in the event of its breach of any of the foregoing provisions, ExtraView Corporation will not have an adequate remedy in money or damages. ExtraView Corporation shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. ExtraView Corporation's right to obtain injunctive relief shall not limit its right to seek further remedies.
If a third party claims that ExtraView infringes its patent, copyright, or trade secret, or any similar intellectual property right, ExtraView Corporation will defend Company against that claim at ExtraView Corporation's expense and pay all damages that a court finally awards, provided that Company promptly notifies ExtraView Corporation in writing of the claim, and allow ExtraView Corporation to control, and cooperate with ExtraView Corporation in, the defense or any related settlement negotiations. If such a claim is made or appears possible, Company agrees to permit ExtraView Corporation to enable Company to continue to use ExtraView, or to modify or replace it. If ExtraView Corporation determines that none of these alternatives is reasonably available, Company agrees to stop using ExtraView on ExtraView Corporation's written request.
3. Limited Warranty and Limitation of Liability. EXTRAVIEW IS PROVIDED "AS IS" AND WITH ANY DEFECTS. EXTRAVIEW CORPORATION MAKES NO WARRANTIES OF ANY DESCRIPTION, EITHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE OR THE DOCUMENTATION, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.IN NO EVENT SHALL EXTRAVIEW CORPORATION BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFIT) WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY.
ExtraView Corporation is not responsible for obsolescence of ExtraView that may result from changes in Company's requirements. The foregoing warranty shall apply only to the most current version of ExtraView issued by ExtraView Corporation from time to time. ExtraView Corporation assumes no responsibility for the use of superseded, outdated, or uncorrected versions of ExtraView.
As Company's exclusive remedy for any material defect in ExtraView for which ExtraView Corporation is responsible, ExtraView Corporation shall attempt through reasonable effort to correct or cure any reproducible defect by issuing corrected instructions, a restriction, or a bypass. In the event ExtraView Corporation does not correct or cure such nonconformity or defect after it has had a reasonable opportunity to do so, Company's exclusive remedy shall be the refund of the amount paid as the license fee for the defective or nonconforming module of ExtraView, from such time that they reported the defect to ExtraView Corporation. ExtraView Corporation shall not be obligated to correct, cure, or otherwise remedy any nonconformity or defect in ExtraView if Company has made any changes whatsoever to ExtraView, if ExtraView has been misused or damaged in any respect, or if Company has not reported to ExtraView Corporation the existence and nature of such nonconformity or defect promptly upon discovery thereof.
The cumulative liability of ExtraView Corporation to Company for all claims relating to ExtraView and this Agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of all license fees Company paid to ExtraView Corporation hereunder. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
In no event shall ExtraView Corporation be liable for any loss of profits; any incidental, special, exemplary, or consequential damages; or any claims or demands brought against Company, even if ExtraView Corporation has been advised of the possibility of such claims or demands. This limitation upon damages and claims is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
Company may have additional rights under certain laws (e.g. consumer laws) that do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If such laws apply, our exclusions or limitations do not apply to Company.
4. Indemnification. Company agrees to indemnify and hold ExtraView Corporation, its officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Company's use of ExtraView or breach of this Agreement.
5. Support. ExtraView Corporation will provide both telephone support and email support under this Agreement, at no cost to the customer for a period of 30 days following the acceptance of this Agreement. Telephone support is available at +1 831 461 7100 during the hours of 9:00 a.m. to 5:00 p.m. Pacific Daylight Time. Thereafter, support is available at the current published rates. Company may attend the free 'Introduction to ExtraView' course at any time without charge. Company may access the ExtraView documentation at any time without charge.
ExtraView Corporation offers support only for the most current version of ExtraView, issued by ExtraView Corporation from time-to-time. ExtraView Corporation may automatically upgrade Company's site to the most current version from time-to-time at its discretion.
ExtraView Corporation makes every endeavor to keep ExtraView available on a continuous basis, but Company recognizes that events may cause ExtraView to be unavailable for periods of time, such as equipment outages and/or failures of the Internet. If ExtraView Corporation requires interrupting service for a planned maintenance activity, ExtraView Corporation will, except in the case of urgent repairs, attempt to communicate the expected outage time to Company in advance.
6. U.S. Government Restricted Rights. ExtraView and accompanying documentation have been developed entirely at private expense. They are delivered and licensed as "commercial computer software" as defined in DFARS 252.227-7013 (Oct 1988), DFARS 252.211-7015 (May 1991) or DFARS 252.227-7014 (Jun 1995), as a "commercial item" as defined in FAR 2.101(a), or as "Restricted computer software" as defined in FAR 52.227-19 (Jun 1987) (or any equivalent agency regulation or contract clause), whichever is applicable. Company has only those rights provided for ExtraView and any accompanying documentation by the applicable FAR or DFARS clause.
7. Term of Agreement; Termination. Company's license of ExtraView shall become effective upon execution of this Agreement and delivery of ExtraView to Company and shall continue indefinitely, unless sooner terminated as provided herein. Termination can occur by Company giving ExtraView Corporation notice of its intention to cease using ExtraView, or Company not accessing the ExtraView program for a period in excess of thirty (30) days, or ExtraView Corporation giving Company a minimum of forty-five (45) day's notice of its intention to cease providing the program, or immediately should Company breach this Agreement. Upon termination, Company shall longer be able to Use the Software and Company shall destroy or return to ExtraView Corporation all documentation and other materials related to the Software. Sections 2, 4 , 7, 9 and 10 of this Agreement shall survive termination .
8. Other Agreements. In the event that Company has executed a separate written and duly authorized license Agreement for the use of ExtraView with ExtraView Corporation, and in the event that the terms of that Agreement do not coincide with the terms of this Agreement, then it is the terms of the other separate Agreement that will be applied.
9. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
10. Free and Promotional Versions of ExtraView. This is a free promotional version of ExtraView. Company agrees that ExtraView Corporation may, with or without notice, terminate the ExtraView instance if the Company fails to use the instance at any time during a 30 consecutive day period. Moreover, ExtraView Corporation reserves the right to withhold, remove, and/or discard the Company's data without notice for any breach or termination of this Agreement. Upon termination for cause or failure to use the ExtraView instance during a 30 consecutive day period, the Company's right to access or use the Company data immediately ceases, and ExtraView Corporation shall have no obligation to maintain or forward any Company data.
Free and promotional ExtraView instances that are hosted by ExtraView Corporation are limited to a maximum of 5 GB of data storage space. The Company's data storage usage may exceed 5 GB only after paying ExtraView Corporation's then-current fees. ExtraView Corporation shall attempt to notify the Company when it is approaching its data storage limits; however, any ExtraView Corporation failure to notify shall not relieve the Company of its obligation to pay such additional charges.
In the event that any of the terms of this Agreement is or becomes or is declared to be invalid or void by any court or tribunal of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from this Agreement and all the remaining terms of this Agreement shall remain in full force and effect.
THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF EXTRAVIEW CORPORATION'S OBLIGATIONS AND RESPONSIBILITIES TO COMPANY AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF OF EXTRAVIEW CORPORATION RELATING TO THE SUBJECT MATTER HEREOF, EXCEPTING ANY.SEPARATE LICENSE AGREEMENT FOR THE USE OF EXTRAVIEW BY COMPANY, WHICH MAY HAVE BEEN AGREED TO BY COMPANY.
7/22/2012
