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END-USER LICENSE AGREEMENT FOR HAGEN SOFTWARE CLASSIFIED ADS PROGRAMS
IMPORTANT-READ CAREFULLY: This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Hagen Software Inc. (Hagen Software) The SOFTWARE PRODUCT includes computer software, and may include associated media, printed materials, and "online" or electronic documentation. The SOFTWARE PRODUCT also includes any fixes, releases, upgrades, new versions or enhancements that may subsequently be issued to You, as well as any related installation services, customization services, technical support services, e-commerce services, web hosting services, or other add-ons that may be provided to you in the future. By purchasing, installing, copying, downloading, accessing or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA.
SOFTWARE PRODUCT LICENSE
The SOFTWARE PRODUCT is protected by United States copyright laws and international copyright treaties, trademark laws, and other intellectual property laws and treaties. Hagen Software retains copyright to the SOFTWARE PRODUCT. The SOFTWARE PRODUCT is licensed, not sold. The term "COMPUTER" as used herein shall mean the HARDWARE, if the HARDWARE is a single computer system, or shall mean the computer system with which the HARDWARE operates, if the HARDWARE is a computer system component. The term "WEB SITE" as used herein shall mean the computer or hardware that stores the source of the directory file structure of a single numeric IP address space, which is recorded under a single domain name in the Internet's domain name system.
1. GRANT OF LICENSE. This EULA grants you the following rights:
(a) Software Installation and Use.
Hagen Software hereby grants you a single, non-exclusive, non-transferable license to use one copy of the SOFTWARE PRODUCT in accordance with the terms and conditions of the EULA. Any rights not expressly granted are reserved. This license authorizes you to install and use a single copy of the SOFTWARE PRODUCT on a single server for usage on a single web site. If you install additional copies, even if such additional copies are located on the same web site and/or the same server, such usage is prohibited unless additional licenses are purchased.
(b) Source Code Usage
This license prohibits selling, licensing, giving away, or otherwise distributing the source code for any of the scripts contained in this SOFTWARE PRODUCT, either in full or any subpart thereof. Nor may you use this source code, in full or any subpart thereof, as part of another program that you either sell, license, give away, or otherwise distribute via any method. You may modify the source code to customize the "look and feel" of the SOFTWARE PRODUCT for your personal usage on the licensed installation only.
(c) Co-branding and ASP Hosting Prohibited.
Except as provided for by any "affiliate" functionality built into the SOFTWARE PRODUCT, the SOFTWARE PRODUCT may not be co-branded or otherwise extended to any other web site. You are prohibited from allowing access to features of the SOFTWARE PRODUCT such that the SOFTWARE PRODUCT appears to reside on servers or be part of a web site in any way other than the computer or hardware for which the license to use the SOFTWARE PRODUCT has been granted. The prohibited conduct includes but is not limited to using the SOFTWARE PRODUCT to host its built in functionality for other web sites as an Application Service Provider (ASP), an "on demand" service, SaaS (Software as a Service), or similar hosted functionality, regardless of whether you charge other web sites or users for access to such hosted functionality. Such usage is expressly prohibited under this EULA. If you are interested in such usage of this program, you must contact Hagen Software to make arrangements for obtaining a license for this type of usage. Hagen Software shall have no obligation to grant you a license for such usage. Notwithstanding the foregoing and except as otherwise provided below, any number of devices or users may access or otherwise utilize the end-user features and services of the SOFTWARE PRODUCT, such as creating or viewing content under this program that resides on a single server or computer and is a part of your web site only. For classified ads programs, this includes creating, modifying, deleting, or viewing classified ads posted on your server or computer using this SOFTWARE PRODUCT.
(d) Back-up Copy.
You may make a single back-up copy of the SOFTWARE PRODUCT. You may use the back-up copy solely for archival purposes. You may not otherwise make copies of the SOFTWARE PRODUCT, including the printed materials accompanying the SOFTWARE.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
(a) Separation of Components.
The SOFTWARE PRODUCT is licensed as a single product. Its component parts may not be separated for use on more than one computer or hardware.
You may not rent, lease or lend the SOFTWARE PRODUCT.
(c) Software Product Transfer.
You may not assign all or any part of your rights or obligations under this EULA without the prior written consent of Hagen Software, and any attempt to the contrary will be void and a material breach of this EULA. Hagen Software may withhold such consent in its sole discretion. A transfer of this EULA will terminate any right to your continued possession or use of the SOFTWARE PRODUCT and you must promptly destroy all remaining copies of the SOFTWARE PRODUCT in your possession or under your control. No transfer shall be allowed unless the recipient agrees to the terms of this EULA.
This EULA shall continue in full force and effect in perpetuity unless terminated earlier in accordance with this or another section of this EULA. This EULA will terminate automatically if you breach any provision of it. In such event, you must destroy all copies of the SOFTWARE PRODUCT and all of its component parts and cease all further use of it. You agree that Hagen Software shall have the sole discretion of determining whether you are in material breach of this agreement. You further agree that Hagen Software has the right to use any and all means necessary to enforce its rights if you are in material breach of this agreement, including but not limited to the right to repossess the software electronically by disabling it remotely over the Internet, as well as the right to delete any and all data created or used by the SOFTWARE PRODUCT, and that termination will not entitle you to a refund of the purchase price or any other amounts paid under any circumstances whatsoever. Termination will have no effect on your obligation to safeguard and protect proprietary rights of Hagen Software, disclaimers and warranties, export restrictions, the Marketing rights of Hagen Software as enumerated below, the Conflict of Law Provisions, the Nondisclosure Agreement, the Enforcement Costs section, the Copyright Infringement section, or the Refund Policy.
This EULA does not grant you any rights in connection with any trademarks or service marks of this product or of Hagen Software. Active Web Suite Technologies, Active Calendar, and Active Classifieds are the trademarks of Hagen Software. You are prohibited from removing the trademark or trademark logo by modifying the source code of the SOFTWARE PRODUCT in any manner.
(f) Copyright Notice.
Unless you have purchased a waiver from Hagen Software, you are prohibited from removing the "Powered by Active Web Suite Technologies" logo and the link to the Active Web Suite Technologies web site from the software. Under all circumstances, including purchase of the waiver for the logo requirement above, you are prohibited from removing any of the copyright notices from the software, whether contained in the program code or within the HTML pages that the program generates. You are specifically prohibited from altering or removing any of the copyright notices contained within the HTML pages generated by the program, including any "Powered by" notices, such that they are no longer visible to the human eye in normal usage on web pages generated by the software (e.g., using a white font for the copyright notice on a white background). Removal or alteration of said copyright notices by User such that they are no longer visible to the human eye in normal usage on web pages generated by the software shall constitute a material breach of this EULA. You agree that if you remove the "Powered by Active Web Suite Technologies" logo or copyright notice in violation of this section, Hagen Software shall have the option of assessing a monetary penalty against you for such violation in lieu of terminating your license to use the SOFTWARE PRODUCT. Exercise of this option by Hagen Software shall in no way authorize you to continue such violation or limit the right of Hagen Software to terminate your license for subsequent violations.
(g) Nondisclosure Agreement.
As additional consideration for the license granted to you under this EULA, and due to the proprietary and confidential nature of the SOFTWARE PRODUCT and the valuable trade secrets of Hagen Software contained therein, you specifically agree not to disclose or divulge any information whatsoever about the SOFTWARE PRODUCT or the related business practices of Hagen Software, or to post or print any reviews, ratings, comments, articles or other information of any kind about the SOFTWARE PRODUCT or the related business practices of Hagen Software on or within any web sites, newsgroups, chat rooms, e-mail messages, newsletters, newspapers, magazines, correspondence, oral commentary, presentations, audio or video recordings, or any other media of any kind, whether printed, electronic, or other formats either now known or hereafter developed, or to cause or direct any other individual, company, organization, or other entity to undertake the activities outlined above, without the prior express written consent of Hagen Software, if such reviews or comments are intended to slander Hagen Software or to harm its reputation for failure to accede to demands or requests by you that are outside the scope of the legal rights and obligations of the parties under this license agreement. You further stipulate that in the event that you (or any other individual, company, organization, or other entity that you cause or direct to engage in the activities outlined above) post any such reviews, ratings, comments, articles, or other information about the SOFTWARE PRODUCT or the related business practices of Hagen Software that are, in the sole judgment of Hagen Software, intended to slander Hagen Software or to harm its reputation for failure to accede to demands or requests by you that are outside the scope of the legal rights and obligations of the parties under this license agreement, you shall automatically be liable to Hagen Software in the amount of $25,000 (U.S. Dollars) per incident, and that you shall pay Hagen Software $10,000 per day for each additional day that the review, rating, comment, article, or other communication remains displayed in any electronic, print, or other medium. The parties understand that these amounts are intended to compensate Hagen Software for its damages and thus constitute a remedy and not a penalty. In the event that you violate this section, you hereby agree to waive all rights to any judicial appeal of this section and this determination, and you hereby stipulate that a court of competent jurisdiction shall enter judgment against you in the relevant amounts as determined above. You further acknowledge and agree that this section shall in no way infringe upon the rights of Hagen Software to pursue other legal remedies against you or to collect other damages for additional causes of action, including but not limited to libel, defamation, tortious interference with business, fraud, theft, copyright infringement, trademark infringement, or other legal causes of action, and that this section shall be applicable and enforceable regardless of whether Hagen Software pursues any other such legal remedies, and regardless of the outcome of any such actions.
(h) Enforcement Costs.
In the event that you breach any provision of this EULA, including but not limited to the sections regarding Termination, Copyright Infringement, the Copyright Notice, the Nondisclosure Agreement, and the Refund Policy, you agree that you shall reimburse Hagen Software for all expenses related to the enforcement by Hagen Software of its legal rights under this agreement, including but not limited to its attorneys' fees, court costs, administrative fees, and all other costs, fees, and expenses incurred by Hagen Software that are associated with enforcing its legal rights under this Agreement.
(i) Access to Server.
You specifically agree that Hagen Software shall have the right to access your server to ensure compliance with the terms of this EULA. Such access shall include access via FTP, Telnet, a web-based control panel, or other means, at the option Hagen Software, as well as access via the World Wide Web to sites that are password protected using .htaccess files or any other method of password protection. Such access shall also include access to your Intranet if the SOFTWARE PRODUCT is hosted on the Intranet and is not accessible via the World Wide Web. You shall provide the necessary usernames, passwords, or other information necessary for Hagen Software personnel to view and access your installation of the SOFTWARE PRODUCT within two business days of receiving such a request from Hagen Software. Hagen Software shall be authorized to make such requests only in a reasonable manner, must take all reasonable measures to avoid damaging your server or interfering with the operations of your web server or the SOFTWARE PRODUCT (unless acting in accordance with the enforcement provisions of this EULA), and shall use all reasonable precautions to safeguard any usernames, passwords, or other information that you provide to Hagen Software in compliance with this provision. Failure of the User to comply in a timely manner with a request by Hagen Software under this provision shall constitute a material breach of this EULA, and Hagen Software shall be entitled to all remedies available to it under this EULA, including but not limited to revocation of your license and recovery of all expenses related to the enforcement of this EULA.
(j) Third Parties.
Any third party or subsequent entity that purchases, installs, copies, downloads, accesses or otherwise uses the SOFTWARE PRODUCT, as well as any third party or subsequent entity that views, copies, creates derivative works from, appropriates, or otherwise alters all or any part of the source code, whether on not such actions were performed legally and in accordance with the terms of this EULA, shall be bound by the terms of this EULA, as amended from time to time by Hagen Software Inc. and posted online by Hagen Software at its web sites. Performing any of the actions enumerated above shall constitute constructive agreement to be bound by the terms of this EULA.
(k) Copyright Infringement.
For the purposes of this EULA, copyright infringement includes the acts of selling, licensing, giving away, or otherwise distributing all or any part of the source code contained in this SOFTWARE PRODUCT, or using all or any part of the source code to create derivative works. Copyright infringement for purposes of this EULA shall also include using all or any part of the source code of the SOFTWARE PRODUCT as part of another program that you or any subsequent party either sells, licenses, gives away, or otherwise distributes via any method. Copyright infringement under this EULA shall also include the act of appropriating any of the concepts, techniques, programming methods, or algorithms contained in the source code for the SOFTWARE PRODUCT if the infringing party viewed or otherwise had access to the source code in any way, even if the source code of the infringing product has been modified or obfuscated so as to appear different from the source code of the SOFTWARE PRODUCT. Access to the source code of the SOFTWARE PRODUCT by the infringing party shall constitute proof of copyright infringement under this EULA if any of the other conditions above have been satisfied.
In the event that you, or any third party or subsequent entity as defined in subsection (j) above (hereinafter, the "infringing party"), unlawfully infringes upon the copyright, ownership, or other intellectual property rights of Hagen Software in the SOFTWARE PRODUCT, the infringing party hereby agrees that it shall automatically be liable to Hagen Software in the amount of $100,000 (U.S. Dollars) per incident, and that the infringing party shall pay Hagen Software $25,000 per day for each additional day that the copyright infringement continues after having received notice of such infringement from Hagen Software. The parties understand that these amounts are intended to compensate Hagen Software for its damages and thus constitute a remedy and not a penalty. The infringing party shall also be liable to Hagen Software for all enforcement costs as defined in section 2(h) above. Any such copies, customizations, modifications, or revisions of the source code of the SOFTWARE PRODUCT by the infringing party, as well as any other programs that contain any such copies, customizations, modifications, or revisions of the source code of the SOFTWARE PRODUCT, shall immediately become the intellectual property of Hagen Software. In the event that this section is violated, the infringing party hereby agrees to waive all rights to any judicial appeal of this section and this determination, and such party hereby stipulates that a court of competent jurisdiction shall enter judgment against such party in the relevant amounts as determined above. The infringing party further acknowledges and agrees that this section shall in no way limit the rights of Hagen Software to pursue other legal remedies against the infringing party or to collect other damages for additional causes of action, including but not limited to libel, defamation, tortious interference with business, fraud, theft, copyright infringement, trademark infringement, or other legal causes of action, and that this section shall be applicable and enforceable regardless of whether Hagen Software pursues any other such legal remedies, and regardless of the outcome of any such actions.
You agree that, in order to maintain your ongoing license to use the SOFTWARE PRODUCT, Hagen Software shall have the right to post reasonable amendments to this EULA online from time to time at its web sites, and that you shall be bound by such amendments. Such amendments must be designed to protect the intellectual property rights of Hagen Software in the SOFTWARE PRODUCT and may not impose additional or ongoing fees for using the SOFTWARE PRODUCT other than those that you agreed to or that were in effect at the time that you licensed the SOFTWARE PRODUCT. You agree that it shall be your responsibility to monitor the license agreement posted online and ensure ongoing compliance with its terms. If you disagree with any amendments posted under this section, your sole recourse shall be to terminate this license and your usage of the SOFTWARE PRODUCT, subject to the terms of the Termination clause in section 2(d) above.
You agree to indemnify Hagen Software and to hold it harmless against all losses sustained by any third parties as a result of the terms of this EULA, including but not limited to the right of Hagen Software to terminate this license under the provisions of section 2(d) above. You agree that You, and not Hagen Software, shall be responsible for reimbursing all third parties against any such losses. Such third parties may include your web hosting company, your ISP, your customers, your business partners, or any other party that is harmed in any way during the course of Hagen Software's enforcement of its rights under this EULA.
You hereby grant to Hagen Software the right to mention you, your company, your organization or other entity, and/or your web site(s) as a customer site in its marketing materials, such as on Hagen Software web sites, in product brochures, or in other media. Such usage may include, among other things, listing your web site(s), linking to your web site(s), and/or displaying your company's logo as part of such listings or links. This authorization shall continue in perpetuity, regardless of how, when, or even whether you ever use Hagen Software products or services, and shall continue in perpetuity even if you stop using Hagen Software products or services.
(o) Abusive Behavior.
You acknowledge and agree that insulting or abusive behavior, including but not limited to harassing, insulting, threatening, or intimidating the administrative or technical support staff of Hagen Software, or engaging in foul language at any time with said staff, or sending multiple e-mails, faxes, or phone calls to Hagen Software instead of using the proper support channels, or repeatedly re-opening or posting new tickets on the same issue and continuing to argue about it even after it has been addressed, or making threats of legal action against Hagen Software or any divisions of Hagen Software Inc., or making threats of fraudulently and illegally attempting to avoid payment for amounts due to Hagen Software Inc., or otherwise engaging in any other behavior that, in the sole discretion of Hagen Software constitutes an abuse of resources, shall constitute a material breach of this Agreement. You agree that in the event of such material breach, Hagen Software shall have the right to charge an administrative fee of up to $500 immediately and without notice, for each such incident, and that you shall be liable for such charges. You further agree that Hagen Software shall be the sole and final arbiter of what actions are deemed to constitute abusive behavior under this section. You further agree that if Hagen Software is unable to collect such charges or you dispute such charges, you will be liable to Hagen Software in the amount of $1,000, plus all enforcement costs as enumerated in the Enforcement Costs section above. You further agree that Hagen Software is authorized to terminate your license under this Agreement or take any other such actions that Hagen Software, in its sole discretion, deems necessary should you violate this provision, and that you shall not be entitled to any refunds of the purchase price or any other amounts paid.
If the SOFTWARE PRODUCT is an upgrade of a component of a package of software programs that you were granted a license for as a single product, the SOFTWARE PRODUCT may be used and transferred only as part of that single product package and may not be separated for use on more than one computer, web server, or web site. You may use a single copy of the complete, upgraded SOFTWARE PRODUCT on a single server for usage on a single web site. You may not continue to use the original SOFTWARE PRODUCT if you accept and use the upgraded SOFTWARE PRODUCT.
Hagen Software does not warrant or guarantee any upgrades to the SOFTWARE PRODUCT whatsoever. Hagen Software may provide upgrades for the SOFTWARE PRODUCT at its option, but the User hereby acknowledges and agrees that this license does not require Hagen Software to provide any upgrades whatsoever, which are provided solely at the discretion of Hagen Software. User agrees to pay any applicable upgrade fees as a condition of accepting any upgraded products offered by Hagen Software. User further acknowledges and agrees that by accepting any offers from Hagen Software of upgraded products, the User is hereby accepting all terms of the End User License Agreement that shall accompany such products. Acceptance by User of the End User License Agreement for the upgraded products, including any modifications thereto, is an essential condition of Hagen Software's offer to User of such products.
Except as noted below, all title and intellectual property rights in and to the SOFTWARE PRODUCT (including but not limited to any source code, images, photographs, animations, video, audio, music, text and "applets," incorporated into the SOFTWARE PRODUCT), the accompanying printed materials, and any copies of the SOFTWARE PRODUCT, are owned by Hagen Software. You may not copy the printed materials accompanying the SOFTWARE PRODUCT. Any customization, translation, modification, or revision of the source code of the SOFTWARE PRODUCT by you immediately becomes the intellectual property of Hagen Software. The creation of derivative works based on or through the use of the source code of the SOFTWARE PRODUCT is prohibited. All title and intellectual property rights in and to the content which may be accessed through use of the SOFTWARE PRODUCT is the property of the respective content owner. This EULA grants you no rights to use such content. All rights not expressly granted under this EULA are reserved by Hagen Software.
(b) Your Responsibilities.
You agree to use due diligence to safeguard and protect the SOFTWARE PRODUCT and all source code as the valuable trade secret and exclusive property of Hagen Software. You will at all times use due diligence to safeguard and protect all such confidential and proprietary information pertaining to the SOFTWARE PRODUCT. You will ensure that all marks, notices or legends pertaining to the origin, identity or ownership of the SOFTWARE PRODUCT remain intact and clearly legible. You specifically agree to indemnify Hagen Software for all losses that it may incur due to the theft of all or any part of the source code of the SOFTWARE PRODUCT while in your possession.
5. DUAL-MEDIA SOFTWARE PRODUCT.
You may receive the SOFTWARE PRODUCT in more than one medium. Regardless of the type or size of medium you receive, you may use only one medium that is appropriate for the COMPUTER. You may not use or install the other medium on another computer. You may not loan, rent, lease, lend or otherwise transfer the other medium to another user, except as part of the permanent transfer (as provided above) of the SOFTWARE PRODUCT.
6. PRODUCT SUPPORT.
Hagen Software does not warrant or guarantee any product support whatsoever. Hagen Software may provide support for the SOFTWARE PRODUCT at its option, but the User hereby acknowledges and agrees that this license does not require Hagen Software to provide any support whatsoever, which is provided solely at the discretion of Hagen Software.
7. PRICE & PAYMENT.
You agree to pay Hagen Software the applicable license fee determined by reference to Hagen Software's published prices at the time the SOFTWARE PRODUCT was ordered. Payment of the license fee entitles you to use the licensed program in accordance with this EULA during the stated term. If the license fee is based on usage, then you will maintain any necessary usage records for calculating fees according to the documentation.
Unless otherwise stated on Hagen Software's invoice, the applicable fees and shipping charges are payable by you promptly upon delivery. You will pay all sales, use, value-added, GST, personal property or other governmental tax or levy associated with this transaction (including interest and penalties imposed thereon) other than taxes based on the net income or profits of Hagen Software. You also agree to pay any applicable fees for installation, customization, or other product support. If you fail to pay any amount when due, your license to use the SOFTWARE PRODUCT will automatically terminate and you will pay all costs of enforcement, including reasonable legal fees.
8. EXPORT RESTRICTIONS.
You agree that you will not export or re-export the SOFTWARE PRODUCT to any country, person, or entity subject to U.S. export restrictions. You specifically agree not to export or re-export the SOFTWARE PRODUCT: (i) to any country to which the U.S. has embargoed or restricted the export of goods or services, which as of March 1998 include, but are not necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country; (ii) to any person or entity who you know or have reason to know will utilize the SOFTWARE PRODUCT or portion thereof in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government.
If SOFTWARE PRODUCT is labeled "North America Only Version" on the SOFTWARE PRODUCT packaging or other written materials, then the following applies: The SOFTWARE PRODUCT is intended for distribution only in the United States, its territories and possessions (including Puerto Rico, Guam, and U.S. Virgin Islands) and Canada. Export of the SOFTWARE PRODUCT from the United States is regulated under "EI controls" of the Export Administration Regulations (EAR, 15 CFR 730-744) of the U.S. Commerce Department, Bureau of Export Administration (BXA). A license is required to export the SOFTWARE PRODUCT outside the United States or Canada. You agree that you will not directly or indirectly, export or re-export the SOFTWARE PRODUCT (or portions thereof) to any country, other than Canada, or to any person or entity subject to U.S. export restrictions without first obtaining a Commerce Department export license. You warrant and represent that neither the BXA nor any other U.S. federal agency has suspended, revoked or denied your export privileges.
9. CONFLICT OF LAW PROVISIONS
This End User License Agreement and Warranty are governed by the laws of the Commonwealth of Virginia, U.S.A. As additional consideration for the license granted to you in this EULA, you agree that all disputes regarding this contract shall be governed solely and exclusively by the laws of the Commonwealth of Virginia, U.S.A., and that the agreement shall be deemed to have been made in the Commonwealth of Virginia. You further agree that any action relating to the terms and provisions of this EULA shall be commenced in the Commonwealth of Virginia in any court of competent jurisdiction. You further agree that any proceeding instituted by either party, whether as a Claim, Counterclaim or otherwise, shall be resolved solely by a Judge of any Commonwealth of Virginia court of competent jurisdiction and that you agree to waive any claims or rights under the laws of your state or country of domicile, or under the laws of any other state or country other than the Commonwealth of Virginia. In addition, by licensing the SOFTWARE PRODUCT under this EULA, you represent and warrant that you are legally authorized to and hereby do waive all claims to legal rights or protections under the laws of your state or country of domicile, or the laws of any other state or country other than the Commonwealth of Virginia, including but not limited to any applicable "consumer protection" laws, and to subject yourself under this EULA to the laws of the Commonwealth of Virginia. Since this representation on your part is an essential element of the consideration necessary for Hagen Software to license the SOFTWARE PRODUCT to you, should this representation prove to be incorrect, you hereby agree to reimburse Hagen Software for $25,000 (U.S. Dollars), plus all losses incurred by Hagen Software as a result of this misrepresentation and for all expenses related to the enforcement by Hagen Software of its legal rights under this agreement, including but not limited to its attorneys' fees, court costs, administrative fees, and all other costs, fees, and expenses incurred by Hagen Software that are associated with enforcing its legal rights under this Agreement.
This representation on your part, and the contractual provisions governing your breach of this representation, are basic contract provisions that are valid and enforceable under international treaties governing the law of contracts, as well as other laws and treaties.
10. DISCLAIMER OF WARRANTY
THIS SOFTWARE AND THE ACCOMPANYING FILES ARE LICENSED TO YOU "AS IS" AND WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Hagen Software Inc. does not warrant that the functions of the SOFTWARE PRODUCT will meet your requirements or that operation of the SOFTWARE PRODUCT will be uninterrupted or error free. You assume all responsibility for selecting the SOFTWARE PRODUCT to achieve your intended results, and for the use and results obtained from the SOFTWARE PRODUCT. Hagen Software Inc. is not responsible if the SOFTWARE PRODUCT does not operate on your server or computer, nor is Hagen Software Inc. responsible for making the SOFTWARE PRODUCT operational. Should the Program prove defective, you and not Hagen Software assume the entire risk of using the program and the entire cost of any service and repair. Failure to install the program is not a valid reason for requesting a refund of the purchase price. This disclaimer of warranty constitutes an essential part of this agreement.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES.
To the maximum extent permitted by applicable law, in no event shall Hagen Software be liable for any damages whatsoever (including without limitation, special, incidental, consequential, or indirect damages for personal injury, loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use this product, even if Hagen Software has been advised of the possibility of such damages. In any case, Hagen Software's entire liability under any provision of this agreement shall be limited to the amount actually paid by you for the SOFTWARE.
11. REFUND POLICY
THE SOFTWARE PRODUCT AND THE ACCOMPANYING FILES ARE LICENSED TO YOU "AS IS" AND WITHOUT WARRANTIES AS TO PERFORMANCE OR MERCHANTABILITY OR ANY OTHER WARRANTIES WHETHER EXPRESSED OR IMPLIED. BY PURCHASING OR USING THE SOFTWARE PRODUCT, YOU ACKNOWLEDGE AND AGREE THAT THERE SHALL BE ABSOLUTELY NO REFUNDS FOR ANY REASON WHATSOEVER, INCLUDING FAILURE TO INSTALL THE PROGRAM, A CHANGE IN MARKET CONDITIONS, A CHANGE IN BUSINESS OR WEB SITE STRATEGY, A CLAIM THAT THE PRODUCT DOES NOT SUIT YOUR NEEDS OR IS NOT WHAT YOU EXPECTED, MODIFICATIONS OF THE SOURCE CODE IMPLEMENTED BY THE USER THAT ALTER THE FUNCTIONALITY OF THE SOFTWARE PRODUCT OR THAT ARE NOT IN ACCORDANCE WITH THE DOCUMENTATION ACCOMPANYING THE SOFTWARE PRODUCT, THE UNAVAILABILITY OF HAGEN SOFTWARE FOR CUSTOMIZATIONS TO THE SOFTWARE PRODUCT, OR FOR ANY OTHER REASON.
BY PURCHASING OR USING THE SOFTWARE PRODUCT, YOU ACKNOWLEDGE THAT YOU HAVE EXERCISED DUE DILIGENCE IN ASCERTAINING THAT THE SOFTWARE PRODUCT WILL RUN ON YOUR WEB SERVER AND THAT IT WILL MEET YOUR NEEDS.
If neither you nor we are able to successfully install the SOFTWARE PRODUCT on your web server after you have purchased the Professional Installation option, Hagen Software will host the SOFTWARE PRODUCT for you on our web servers until you are able to find a suitable web server, for a period not to exceed three (3) months.
12. SPECIAL PROVISIONS
U.S. GOVERNMENT RESTRICTED RIGHTS.
The SOFTWARE PRODUCT and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Hagen Software Inc./730 24th St., N.W., Suite 14/Washington, DC 20037/USA.
This End User License Agreement and Warranty are governed by the laws of the Commonwealth of Virginia, U.S.A.
This document constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. Any provision found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement of it on future occasions. Headings are for reference purposes only and have no substantive effect.
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