Software License Agreement

IMPORTANT – PLEASE READ THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY.  by clicking on the “Accept” button below, you agree to be bound by THIS AGREEMENT.  

If you do not agree to any of the terms or conditions below, you should click on the “Do Not Accept” button below to discontinue the installation OR DOWNLOAD process. 

This is a legal agreement between you and NewsGator Technologies, Inc. (“NewsGator”) for the accompanying software product, which may include associated media, printed materials, “online” or electronic documentation, and modifications, updates, and enhancements provided by NewsGator (the “Licensed Software”).  The Licensed Software may connect to and rely on the Service (as that term is defined herein).  The term “you” means the individual person installing or using the Licensed Software on her own behalf; or, if the Licensed Software is being downloaded or installed on behalf of a company, “you” means that company and the person downloading or installing the Licensed Software, who represents that she has the authority to do so on the company’s behalf.

UPON ORDERING, DOWNLOADING, INSTALLING OR UNENCRYPTING ANY VERSION OF THE SOFTWARE, YOU ARE REAFFIRMING THAT YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT

1.	Definitions.	
a.	“Content” means any and all data, information, articles, news, text, pictures, images, sounds, RSS feeds, or other content.
b.	“User” is a person who has been authorized to exercise the rights with respect to the Software and/or the Service, as provided in this Agreement.
c.	“Service” means internet-based server service hosted by or on behalf of NewsGator to enable Users (as that term is defined herein) to select and manage Content provided by you, Users, or third parties and received by User through the Licensed Software.

License.  Subject to the terms of this Agreement, NewsGator grants you a nontransferable, nonexclusive, worldwide, limited license to reproduce, execute, and perform the Licensed Software, in executable object code format only, as necessary to install the Licensed Software. 

You may receive the software and related documentation in more than one medium.  Regardless of the number of media you receive, you may use only the medium that is appropriate for the computer on which the software is to be installed.  

If the software and related documentation are provided as an upgrade, patch or update to an earlier licensed release of the software, then you must have a valid license to operate such earlier release of the same version as the upgrade to install or use the upgrade.  All software being upgraded is deemed to be part of the software and is subject to this Agreement.  You may transfer an upgrade only in conjunction and together with the licensed software being upgraded.

You may make one (1) copy of the Licensed Software for backup and archival purposes, provided that you reproduce all copyright and other proprietary notices that are on the original copy of the Licensed Software.

Access to the Service requires the Licensee Software to be used in conjunction with the NewsGator services, subject to the then-current NewsGator Terms of Use at http://www.newsgator.com/ngs/TermsOfService.aspx.

2.	Restrictions.  The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Licensed Software or the Service available to any third party (other than an authorized User); (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Licensed Software or the Service, access the Licensed Software in order to build a similar or competitive product or service, or authorize any third party to do any of the foregoing; (c) except as expressly stated herein, no part of the Licensed Software may be modified in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording or other means; and (d) any future release, update, or other addition to functionality of the Licensed Software shall be subject to the terms of this Agreement.

3.	Service.   NewsGator will use reasonable efforts to make the Service available to you during the term of the Agreement.  You will not use the Service for any illegal purpose nor for the infringement or violation of any third party’s rights. You acknowledge that NewsGator may delete or disable access to any Content that NewsGator reasonably believes infringes a third party’s rights. NewsGator may terminate this Agreement if you (or the Users) repeatedly infringe third party rights.  Your access to and use of Content through the Software or the Service is governed by your (or the Users’) agreements with the providers of the Content. You will comply (and require the Users to comply) with such third-party agreements.  You will defend, indemnify and hold harmless NewsGator from and against any liabilities, damages, claims, losses or actions arising from or related to your (or the Users’) access to, or use of, any Content.  NewsGator reserves the right to discontinue offering the Service at any time without prior notice.

4.	Ownership.  The Licensed Software is licensed, not sold, to you for your use only under the terms of this Agreement, and NewsGator reserves all rights not expressly granted to you.  You own the media, if any, on which the Licensed Software is recorded, but NewsGator retains ownership of all copies of the Licensed Software itself.

5.	Disclaimer of Warranties.  The Licensed Software and the Service IS provided “AS-IS.”  NEWSGATOR AND ITS SUPPLIERS disclaim all express, implied or statutory warranties relating to the Licensed Software and the Service, including but not limited to, merchantability, fitness for a particular purpose and non-infringement.  NEWSGATOR does not warrant that use of the Licensed Software or the Service will be uninterrupted, or error-free, or that defects will be corrected.  if applicable law requires any warranties with respect to the licensed software or the Service, all such warranties are limited in duration to ninety (90) days from the date of download.  

6.	Limitation of Remedies and Damages.  In no event will NewsGator  be liable for any consequential, indirect, exemplary, special or incidental damages, including any lost data and lost profits, arising from or relating to this Agreement. NewsGator’s total cumulative liability in connection with this Agreement, whether in contract or tort or otherwise, will not exceed the Fees paid to NewsGator hereunder.  One or more claims will not enlarge this limitation.  The parties acknowledge that the provisions of this Section 7 reflect an agreed-upon allocation of risk between the parties and that the parties would not enter into this agreement without these limitations of liability.  In addition, NewsGator disclaims all liability of any kind of NewsGator’s suppliers.

7.	Consumers Located Outside the U.S.  If you are located outside the U.S., the limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice your statutory rights if you are located outside of the USA and you are a consumer, i.e., a person acquiring goods otherwise than in the course of a business. The limitations or exclusions of warranties and remedies contained in this Agreement shall apply to you only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.

8.	Term and Termination.  This Agreement and the licenses granted hereunder are effective on the earlier of the date you download or install the Licensed Software and shall continue unless this Agreement is terminated.  This Agreement will terminate immediately in the event that you materially breach any of the terms hereof.  You may terminate this Agreement at any time, with or without cause, by sending either an email to info@newsgator.com or a letter by United States mail to: NewsGator Technologies, Inc., 518 17th Street, Suite 980, Denver, Colorado, 80202, or to such other address as NewsGator may specify in writing by posting the new address on the NewsGator website.  You may elect to terminate only the Service portion of this agreement.  Should you elect to terminate the Service, you will no longer have access to the features and functionality provided through the Service.  If you terminate the services portion of the agreement your license to use the software will remain in effect unless it is terminated by you or NewsGator under the terms of this agreement.  Upon termination of the Service and or Software license(s) the terms of this Agreement which are intended to survive termination will remain in effect.

9.	Modifications.  NewsGator reserves the right to change the terms and conditions of this Agreement or its policies relating to the Licensed Software at any time, and such changes will be effective upon notice to you.  Your continued use of the Licensed Software after any such changes shall constitute your consent to such changes.

10.	U.S. Government Users.  The Licensed Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Licensed Software with only those rights set forth therein.

11.	Export.  The Licensed Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries.  You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Licensed Software and related technology, as may be required.  You will indemnify and hold NewsGator harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.  Your obligations under this section shall survive the expiration or termination of this Agreement.

12.	Miscellaneous.  Neither the rights nor the obligations arising under this Agreement are assignable by you, and any such attempted assignment or transfer shall be void and without effect.  This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado and the United States without regard to the conflict of laws provisions therein. Any action under or relating to this Agreement shall be brought solely in the state and federal courts located in Colorado, with sole venue in the courts located in Denver County and each party hereby submits to the personal jurisdiction of such courts.  In the event any proceeding or lawsuit is brought by NewsGator or you in connection with this Agreement, the prevailing party in such proceeding or lawsuit shall be entitled to receive its costs, expert witness fees and reasonable attorney’s fees, including costs and fees on appeal. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.  In the event that any provision of this Agreement is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the parties, with the other provisions remaining in full force and effect.  Any notice to you may be provided by email.  This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly canceled.  Any modifications of this Agreement must be in writing and agreed to by both parties. 

QUESTIONS OR ADDITIONAL INFORMATION.  If you have questions regarding this Agreement, or wish to obtain additional information, please send an e-mail to info@newsgator.com.

The Licensed Software is protected by United States Copyright Law 
and international treaty.  
Unauthorized reproduction or distribution is subject to civil and criminal penalties.