This
Non-Exclusive License Agreement ("Agreement") is between
Digital Paths LLC, a privately owned corporation of the
state of California, hereinafter referred to as "Digital
Paths" and the Purchaser.
1. Acceptance.
The delivery of the packaged product to the Purchaser by
Digital Paths constitutes an offer to enter into this Agreement.
By installing this product, purchaser accepts this Agreement
and all the terms and conditions contained therein.
2. Defined
Terms. The terms "Agreement", "Digital Paths" and "Purchaser"
shall have the meanings indicated above. As used herein,
the following terms shall have the following meanings: "Software"
shall mean the Digital Paths Palm OS application. "Use"
shall mean the use of the Software solely in connection
with accessing content on the World Wide Web, and the maintaining
of databases necessary to the software's operation.
3. Grant
of License. Digital Paths hereby grants to Purchaser a non-exclusive
license solely to Use the Software on one handheld computer
and one desktop computer respectively. Any other use of
the Software is expressly forbidden.
4. Term.
This Agreement shall be for an indefinite term.
5. Maintenance
and Upgrades. Digital Paths shall have no obligation pursuant
to this Agreement to either maintain or upgrade the Software.
6. Confidentiality.
The Purchaser hereby acknowledges and agrees that the Software
in whatever form is proprietary and confidential and shall
not be copied, loaned, dis-assembled or otherwise disclosed
by Purchaser to any third party without the express prior
written consent of Digital Paths.
7. Title
to Intellectual Property Rights. All copyright, patent,
trademark, trade secret, confidential information and other
intellectual and proprietary rights in the Software and
all derivative works thereof are and shall remain the property
of Digital Paths.
8. Indemnification
by Purchaser. Purchaser agrees to indemnify, defend and
hold Digital Paths harmless from and reimburse Digital Paths
on demand for any claim, demand, action, liability, damage,
loss, cost or expense, including reasonable attorneys fees,
brought against, made upon, or incurred by Digital Paths
because of or arising out of any act or omission (including
without limitation any breach hereof) of Purchaser, its
officers, directors, employees, subcontractors, dealers
or principals. The indemnification provided for this section
shall survive the termination of this Agreement.
9. Exclusion
of Incidental and Consequential Damages. Independent of,
separable from and to be enforced independently of any other
enforceable or unenforceable provision of this Agreement,
neither party shall be liable to the other (nor to any person
claiming rights derived from the rights of said other party)
for incidental, consequential, special, punitive, or exemplary
damages of any kind, including loss profits, loss of business
or other economic damage, and further including any injury
to property, as a result of breach of any term of this Agreement,
regardless of whether the other party was advised, had reason
to know or in fact knew of the possibility thereof. The
parties hereto acknowledge that the foregoing sentence reflects
an informed voluntary allocation between the parties of
the risks (known and unknown) that may exist in connection
with this Agreement, that such voluntary risk allocation
was a material part of the bargain between the parties,
and that the economic and other terms of this Agreement
were negotiated and agreed to by the parties in reliance
on such voluntary risk allocation.
10.
Disclaimers. Digital Paths disclaims any and all warranties,
conditions, or representations (express or implied), oral
or written (with respect to any and all goods or services
provided pursuant to this Agreement including any and all
warranties or conditions of title, non-infringement, merchantability,
or fitness or suitability for any particular purpose (whether
or not Digital Paths knows, has reason to know, has been
advised, or is otherwise in fact aware of any such purpose),
whether alleged to arise by law, by reason of custom or
usage in the trade, or by course of dealing.
11.
Attorney's Fees. The parties agree that if it be determined
by any court that any party has failed to perform its obligations
herein, then the prevailing party or parties shall be entitled
to recover reasonable attorney's fees, court costs and other
reasonable expenses incurred in the enforcement of the rights
and obligations set forth in this Agreement or in a claim
for damages based on any breach of this Agreement.
12.
Choice of Law. The parties agree that this Agreement is
to be construed and interpreted according to the laws and
statutes of the State of California or to the extent Federal
pre-emption has occurred, by the laws and statutes of the
United States, and that exclusive jurisdiction and venue
for all actions hereon shall be vested with the courts of
Orange County, California.
13.
Entire Agreement. This Agreement constitutes the sole and
only Agreement between the parties hereto regarding this
transaction. Any prior agreements between the parties regarding
this transaction and not expressly set forth herein are
null and void.
14.
No waiver of any breach of any of the provisions of this
Agreement shall constitute a waiver of any prior, concurrent,
or subsequent breach of the same or other provisions hereof
and no waiver shall be effective unless made in writing
and signed by an authorized representative of the party
making said waiver.
15.
In the event that any provision of this Agreement shall
be held to be illegal, or otherwise unenforceable, such
provision shall be severed and the entire Agreement shall
not fail on account thereof and the balance of the Agreement
shall continue in full force and effect provided, however,
that if the severing of such provision results in a material
alteration of this Agreement, the remaining provisions of
this Agreement shall be adjusted equitably so that no party
benefits disproportionately.
16.
Digital Paths reserves the exclusive right to and control
of the use of its name, symbols, trademarks or servicemarks
presently existing or hereafter established. Nothing in
this Agreement shall be construed to grant any rights for
the use of same to Purchaser.
17.
This Agreement shall governed by and construed in accordance
with the laws and statutes of the State of California, or
to the extent federal preemption has occurred, by the laws
and statutes of the United States of America.
18.
This Agreement may not be amended or modified in any manner
except by written agreement signed by both parties.
DPWeb
License Agreement
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