Crabdish, Inc. ("Crabdish"), the owner of the UMapper.com Web site, is willing to grant you, or, in the case that you represent a corporation or other organization, that corporation or organization (collectively and interchangeably, "Licensee" or "You") a limited, personal, non-exclusive license to use the "Software" set forth on the one or more order forms, paper or electronic, You have entered into with Crabdish relating to the Software (each, an "Order Form") subject to Your acceptance and agreement to be bound by the terms of this End User Software License Agreement (together with the terms and conditions of the Order Form, the "Agreement").
by clicking on the "I Accept" button below (or by otherwise installing or using any Software), You acknowledge that You have read, understand, and agree to be bound by the terms of this Agreement as it relates to that software as of the date on which you first click the "Accept" button, or otherwise first install or use the Software (such date, the "Effective Date"). If You do not agree to the terms of this Agreement, Crabdish is unwilling to grant You a license to the Software, You should click on the "I Do Not Accept" button below to discontinue the installation process, and you should promptly return the software to the place from which you obtained it for a refund.
1. Grant of License. Subject to the terms and conditions of this Agreement, Crabdish grants to You a personal, limited, non-exclusive, non-transferable license to use the number of Licenses for the Software set forth in each applicable Order Form, solely in executable form, and solely to develop and display web pages.
2. Installation. You may install, use, access, display and run the Software on a any number of computers, such as a workstations, web servers or other devices ("Workstations"). You may also store or install the Software on a storage devices, such as a network server, used to install or run the Software on Your other Workstations over an internal network. However, a license for the Software may not be shared among multiple users, as each license is limited to a single authorized user. If You wish to expand the number of authorized users of the Software, You may purchase additional licenses from Crabdish. Any additional licenses will be subject to the terms of this Agreement.
3. Restrictions. Except as expressly permitted under this Agreement, You will not, and will not allow any third party to: (a) copy the Software (except for 1 copy for backup and disaster recovery purposes or as described in the documentation accompanying the Software); (b) modify, translate, adapt, alter, or create derivative works from the Software; (c) merge the Software with any other software or documentation; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software; (e) distribute, sublicense, rent, lease or loan the Software to any third party; or (f) use the Software for the business needs of another person or entity, including without limitation, providing outsourcing, service bureau, commercial hosting, application service provider or on-line services to third parties. You may not remove, alter or obscure any proprietary notice that appears on the Software or on any copies made in accordance with this Agreement.
4. Ownership. The Software is licensed, not sold, to You for use solely subject to the terms and conditions of this Agreement. The Software and all worldwide intellectual property and proprietary rights therein and relating thereto, are and will remain the exclusive property of Crabdish or its licensors, if any. Except for the limited rights expressly granted under Section 1, You will have no right, title or interest (whether by implication, estoppel, or otherwise) in or to the Software or any Intellectual Property Rights (as defined below) therein or thereto. Crabdish retains all rights, title and interest in and to any and all trademarks and logos of Crabdish displayed on or in the Software. You agree not to challenge or contest Crabdish?s rights to or ownership of, or otherwise attempt to assert any rights in, the Software. "Intellectual Property Rights" means all worldwide patent, patent applications, copyrights, trade secrets, trademarks, service marks, trade names and any other intellectual property, proprietary, and database protection rights.
5. Third Party Code. The Software may contain or include software code owned or provided by third-party licensors of Crabdish ("Third-Party Code"). For any Third-Party Code clearly indicated to be subject to the terms of a third party software license (a "Third-Party License"), the terms of the applicable Third-Party License will apply to the Third-Party Code independent of the terms of this Agreement. Any Third Party Code not subject to a Third Party License is subject to the terms and conditions of this Agreement and the licensors of any such Third Party Code are third party beneficiaries of this Agreement. Nothing in this Agreement limits Your rights under, or grants rights to You that supersede, the terms of any applicable Third-Party License.
6. Version Restrictions: You acknowledge that the Software identified as a "beta" version ("Beta Software") is provided solely as a convenience for You. Beta Software may include additional features or functionality currently under development for inclusion in the Software, but is not currently supported by Crabdish. You acknowledge that Beta Software will not be supported under Section 7. You covenant to treat all Beta Software as Software, including, but not limited to, the restrictions on use set forth in Section 3.
7. Maintenance and Support Services. For one year following the Effective Date, subject to the terms and conditions of this Agreement, Crabdish will provide, on a commercially reasonable basis, the following support services for the Software ("Support") via email during normal Crabdish business hours (which are 8:00 AM ? 5:00 PM Mountain Time, Monday through Friday, excepting holidays): (1) investigation and confirmation of a report by You (submitted to Crabdish via email) of a Failure (as defined below), including (i) isolation of the problem(s) causing such Failure; and (ii) within 30 days, repair or replacement, as applicable and at Crabdish?s sole discretion, of the Software as necessary to cure the Failure; (2) installation assistance; (3) assistance with understanding the standard features of the Software; and (4) assistance with cross?Crabdish component integration. Crabdish will use commercially reasonable efforts to respond to all support-related email within five business days of receipt of such email. A "Failure" means a failure of the Software to operate substantially in accordance with the then-current specifications for that software when the software has been installed and used in accordance with those specifications. Crabdish will have no obligation to provide Support for any Failure that: (a) is due to a breach by You of the Agreement; (b) cannot be reasonably remedied; (c) is due to use of the Software in combination with third-party products, equipment, software, or data; (d) is due to any release of the Software other than the most current release; (e) is due to any modifications to the Software not provided by Crabdish; (f) has been listed as a known issue on Crabdish?s website, or (f) is caused by Your negligence, abuse, misapplication, or use of the Software. You will provide Crabdish with reasonable assistance to resolve the Failure, including providing Crabdish with sufficient access to and information regarding Your computing environment to enable Crabdish to duplicate the Failure at issue and (as applicable) to determine that the Failure has been corrected. Crabdish will have no liability for any changes required by Your hardware or software configuration which may be necessary to use the Software due to a workaround, error correction, or maintenance release. Crabdish reserves the right to provide updates and upgrades for the Software to You at its convenience. Any updates, upgrades and any other repairs, replacements or modifications to the Software made available to You will be considered part of the "Software" for purposes of this Agreement and will be subject to the terms and conditions of this Agreement applicable to the Software.
8. Fees and Payment.
8.1 License Fee. In consideration of the rights to the Software provided under this Agreement, You will pay Crabdish the fees ("Fees") listed on the UMapper.com Web site applicable to the Software.
8.2 Payment. Payment of the Fees must be made in U.S. dollars, and must be paid via credit card or direct withdrawal from a bank account. You grant Crabdish the right to charge the credit card or bank account specified in the applicable Order Form for all Fees incurred under this Agreement. On the Effective Date, You will remit to Crabdish a one-time payment of the Fees as set forth on the Order Form based on the number of end-user licenses You are purchasing. You may, at any time during the term of the Agreement, increase the number of licenses which you have purchased upon providing written notice to Crabdish, together with payment of Crabdish?s then-current Fees associated with such number of additional end-user licenses. All Fees are non-refundable. Your obligation to pay Fees not subject to a reasonable dispute will be unconditional and not subject to abatement, setoff or defense of any kind. Fees exclude all applicable sales, use, and other taxes, fees, duties and similar charges, and You will be responsible for payment of all such taxes (other than taxes based on Crabdish?s income), fees, duties, and charges. Any portion of the Fees not paid when due will accrue interest at 18% per annum (1.5% per month) or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
9. Term and Termination. The term of this Agreement will begin on the Effective Date and, unless earlier terminated as set forth in this Agreement, will continue indefinitely. You may terminate this Agreement at any time by providing notice to Crabdish. This Agreement will also automatically terminate if You breach a material term of this Agreement. Upon any termination of this Agreement, You agree to immediately cease all use of the Software, destroy all copies of the Software, and, upon the request of Crabdish, certify in writing Your compliance with the terms and conditions of this Section 9. Upon any termination of this Agreement due to uncured breach by Crabdish, You will be entitled to receive a pro rata amount of the Fees paid under this Agreement based on a 3 year useful life of the Software. The foregoing is Your exclusive remedy for Crabdish?s breach of this Agreement. Sections 4, 10, 11, 12, 13 and 16 shall survive termination of this Agreement.
10. Warranty and Disclaimer. CRABDISH DOES NOT WARRANT THAT: (A) THE OPERATION OF THE SOFTWARE OR HARDWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT FUNCTIONS CONTAINED IN THE SOFTWARE WILL OPERATE IN COMBINATIONS OF SOFTWARE OR HARDWARE THAT MAY BE SELECTED FOR USE BY YOU; (B) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR (C) ANY RESULTS, OUTPUT, OR DATA PROVIDED THROUGH OR GENERATED BY THE SOFTWARE WILL BE ACCURATE, UP-TO-DATE, COMPLETE OR RELIABLE. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 10, TO THE MAXIMUM EXTENT PERMITTED BY LAW, CRABDISH SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW OR OTHERWISE, RELATING TO THIS AGREEMENT AND THE SOFTWARE AND ANY SERVICES PROVIDED TO YOU, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
11. Limitation of Liability. THE LIABILITY OF CRABDISH UNDER THIS AGREEMENT, REGARDLESS OF THE BASIS OF LIABILITY OR THE FORM OF ACTION, WILL NOT EXCEED THE FEES PAID TO CRABDISH FOR THE PORTION OF THE SOFTWARE OR SERVICES CAUSING THE LIABILITY. IN NO EVENT WILL CRABDISH BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND REGARDLESS OF WHETHER CRABDISH HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, INCLUDING WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SOFTWARE, OR ANY RESULTS OBTAINED FROM OR THROUGH THE SOFTWARE. CRABDISH WILL NOT BE LIABLE FOR ANY NETWORK-RELATED PROBLEMS ATTRIBUTABLE TO THE SOFTWARE OR CHANGES TO NETWORK CONFIGURATION THAT MAY AFFECT THE PERFORMANCE OF THE SOFTWARE.
12. Indemnification. You will indemnify, defend, and hold harmless Crabdish, its licensors, and each of their respective employees, officers, directors, and affiliates ("Indemnified Parties"), from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) which result from any claim or allegation against any Indemnified Party arising from Your use of the Software or Your breach of any term of this Agreement. Crabdish will provide You with notice of any such claim or allegation, and Crabdish will have the right to participate in the defense of any such claim at its expense.
13. Confidential Information. You acknowledge that the Software contains confidential and proprietary information of Crabdish, including without limitation the Source Code, inventions, algorithms, know how and other proprietary information contained therein (collectively, "Confidential Information"). You agree to protect the Confidential Information with at least the same degree of care employed with respect to Your own confidential or proprietary information. You will not use the Confidential Information for any purpose other than in connection with Your use of the Software under the Agreement. Except as otherwise set forth in this Agreement, under no circumstances will You allow any third party to have access to the Software.
14. Assignment. You may not assign, delegate or otherwise transfer this Agreement or any of Your rights or obligations under this Agreement without the prior written consent of Crabdish. Unless specifically authorized in writing by Crabdish, assignment of this Agreement will not release You from any prior outstanding obligation under this Agreement or allow You or Your assignee to expand the number of installations of the Software authorized under this Agreement. This Agreement is freely assignable by Crabdish and will inure to the benefit of Crabdish?s successors and assigns. Any assignment in violation of this Section 14 is null and void.
15. United States Government Restricted Rights. The Software is comprised of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to any U.S. Government customers: (a) only as Commercial Items; and (b) with only those rights as are granted to all other customers pursuant to the terms of this Agreement.
16. Additional Terms. If any provision of this Agreement is found to be unenforceable, such term will be considered severable from the remaining terms, which will continue to be valid and enforceable. Any amendments or modifications of this Agreement will be binding upon the parties only if made in writing and signed authorized representatives of both parties. Under no circumstances will the preprinted terms of any purchase order or any other terms apply to this Agreement. No waiver of any of the terms or conditions of this Agreement will be binding for any purpose unless made in writing and signed by authorized representatives of both parties and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either of the parties in exercising any right will operate as a waiver, nor will any single or partial exercise by the either of the parties of any right preclude any other or further exercise thereof or the exercise of any other right. All notices, consents and approvals under this Agreement must be delivered in writing by personal delivery, electronic facsimile or certified mail, postage pre-paid, to the other party at its address set forth on the UMapper.com Web Site or at such other address as may be later designated by such party. Notices will be deemed to have been received upon the date of receipt or, in the case of certified mailing, 2 days after deposit in the mail. This Agreement will be governed by the laws of the State of Colorado without regard to conflicts of law principles. All disputes arising under this Agreement must be brought in the state and federal courts located in Denver, Colorado, as permitted by law. Each party irrevocably hereby consents to the jurisdiction and venue of any such court in any such action or proceeding. No agency, partnership, or joint venture is created by this Agreement. The parties are and remain at all times independent contractors and not agents or employees of the other party.