NuMedia Soft, Inc. ('Corporation') grants an end user license to use the enclosed software/software download to the original purchaser and or trial user. Using this product means that you accept and agree to the terms and conditions of this agreement. This agreement shall apply to all users of the product whether said use results from a purchase or use during a free trial period. Corporation grants to you and you accept a non-exclusive license to use this product. Copies may be made for back-up purposes only. Copies made for any other purpose are expressly prohibited, and adherence to this requirement is the sole responsibility of the purchaser.
DEFINITIONS
1. 'Product'. It is hereby understood that the term, 'Product', as used herein, shall mean and refer to all of that certain computer software and/or applications, created, solely owned and to be provided hereunder by Corporation. It is expressly acknowledged by all of the parties hereto that said Product shall, at all times, belong to, and remain the sole property of, Corporation, and Corporation shall maintain the sole right to transfer the license to use said Product as contemplated herein. Further, Licensee shall be allowed certain restricted usage of said Product by Corporation pursuant to the terms and conditions set forth herein, and at the sole discretion of Corporation, for the purposes set forth herein.
TERMS AND PROVISIONS
2. Effective Date of Agreement. The effective date of this shall be the earlier of the date of download or the date of purchase.
3. Equipment. Other than any items which may be included in the Product, if applicable, it is agreed by the parties hereto that Licensee shall provide and use its own tools, supplies, equipment and the like, and it is the sole responsibility of Licensee to maintain and upgrade said tools, supplies and equipment.
4. Technical Support. Corporation agrees to provide to Licensee any technical support, which may be necessary in connection with LicenseeÆs effective use of said Product free of charge for a period of ninety (90) days. Thereafter, Corporation shall provide all technical support for a fee. Corporation reserves the right to set all fees associated with technical support.
5. Copying or Reproduction of Product. Said Product being provided herein to Licensee may be copied or reproduced by Licensee for back-up purposes only, and any copies or reproductions made for any other purpose, without CorporationÆs advance approval, are expressly prohibited. Further, any and all copies or reproductions legitimately made by Licensee herein, must be destroyed or returned to Corporation upon termination of this Agreement, as set forth hereinbelow. However, Licensee shall be free to provide to its own customers secondary use of said Product, as long as said Product cannot be used separately in design mode or otherwise so as to be used only in conjunction with LicenseeÆs (or its customerÆs) own software, and/or bound in, and not separate from, an application. Further, any and all source code, or modified source code, license files or any file(s) other than the control executable file(s), making up, or forming a part of, said Product may not be copied, reproduced or distributed by Licensee, or any customers of Licensee, in any manner, for any reason, without the express advance written approval of Corporation. Additionally, all parties to this Agreement acknowledge and agree that Product is specifically designed, provided and intended for use by only one (1) developer on one (1) computer at a time. Therefore, all parties to this further agree that Product shall not be installed on more than one (1) Computer at a time, which includes any installation or use of Product on a network of computers, which is expressly prohibited herein, if more than one (1) workstation on any such network will be accessing Product. It is expressly agreed by the parties hereto that each developer, working on a project, which involves use of said Product, shall be required to purchase a separate license for said Product, which shall entail agreeing to abide by the terms and conditions contained in a separate end user license agreement.
6. Termination of Agreement. Should either party, at any time, desire to terminate this Agreement, then said party shall notify the other party, in writing, at least thirty (30) days in advance of any termination of this Agreement. Further, upon any such termination of this Agreement, Licensee shall immediately deliver to Corporation all documents and/or items making up said Product, and any and all copies or reproductions, which were made by Licensee, and shall relinquish any and all further use thereof.
7. Confidential Information. It is expressly acknowledged by the parties hereto that the issue of the preservation of confidentiality in connection with the use and temporary possession of said Product is of such importance that the parties hereto have also entered into that certain Non-Disclosure Agreement, of even date herewith. Said Non-Disclosure Agreement specifically deals with the protection of certain 'Confidential Information' and/or 'Trade Secrets' currently owned by Corporation, and more fully defined in said Non-Disclosure Agreement, the disclosure of which to others, not a party to this Agreement or to said Non-Disclosure Agreement, would greatly harm Corporation. Therefore, Licensee acknowledges, reiterates and agrees, in this Agreement, that any and all terms, which were agreed to in said Non-Disclosure Agreement shall be construed, and remain in full force and effect, independently of this Agreement.
8. Liability. Licensee hereby warrants that Licensee, alone, shall be solely responsible for any and all product liability on any and all product and/or other materials made or created by Licensee through the use of said Product and during the pendency of this Agreement, and shall wholly release and hold harmless Corporation for any and all damages, claims, demands, actions, or rights of action of whatever kind or nature whatsoever, that now exist or may hereafter accrue, or arise, related to said Product, while said Product is being used by or otherwise temporarily possessed by Licensee, beyond, or in excess of the purchase price paid by Licensee.
9. No Waiver. The failure or delay of either party in the enforcement of the rights detailed herein shall not constitute a waiver of said rights nor shall it be considered as a basis for estoppel either at equity or at law. Such party may exercise its rights herein despite said delay or failure to enforce said rights at the time the cause of action or right or obligation arose.
10. Professionalism. Licensee warrants that the obligations agreed to by Licensee to be carried out hereunder, and any and all use by Licensee of said Product, shall be performed with due diligence in a safe, competent, professional and workmanlike manner and in compliance with any and applicable statutes, rules and regulations.
11. Warranties.
A. Corporation hereby warrants to Licensee that no other person or entity owns, holds or has any interest in, whether legal, equitable or beneficial, or has the right to purchase said Product belonging to Corporation, which would preclude LicenseeÆs use and enjoyment of said Product as contemplated herein. Corporation has the full right, power and authority to execute, deliver and carry out the terms of this Agreement, and all documents and agreements necessary to give effect to the provisions of this Agreement and to consummate the transactions contemplated on the part of Corporation hereby. The execution, delivery and consummation of this Agreement, and all other agreements and documents executed in connection herewith by Corporation, have been duly authorized by all necessary action on the part of Corporation. No other action, consent or approval on the part of Corporation or any other person or entity is necessary to authorize Corporation's due and valid execution, delivery and consummation of this Agreement and all other agreements and documents executed in connection hereto. This Agreement and all other agreements and documents executed in connection herewith by Corporation, upon due execution and delivery thereof, shall constitute the valid and binding obligations of Corporation, enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws. The execution, delivery and consummation of this Agreement and all other related agreements and documents by Corporation do not constitute a violation of, and will not be in conflict with, and will not, with or without the giving of notice or the passage of time, or both, result in a breach of or constitute a default under any agreement or document, or create (or cause the acceleration of the maturity of) any debt, indenture, obligation or liability affecting the Product, or result in the creation or imposition of any security interest, lien, charge or other encumbrance upon any items part of said Product. As of the date hereof, Corporation has no contingent liabilities or obligations that may result in any liability or obligation to Licensee with regards to said Product. Further, Corporation provides to Licensee access to and use of said Product herein on an 'as-is' basis, and Corporation makes no warranty to Licensee or its customers, whether express or implied, as to the suitability, merchantability or fitness of Product for a particular use.
B. Licensee hereby warrants to Corporation that Licensee has the full right, power and authority to execute, deliver and carry out the terms of this Agreement and all documents and agreements necessary to give effect to the provisions of this Agreement and to consummate the transactions contemplated on the part of Licensee hereby. The execution, delivery and consummation of this Agreement and all other agreements and documents executed in connection herewith by Licensee has been duly authorized by all necessary action(s) on the part of Licensee. No other action on the part of Licensee or any other person or entity is necessary to authorize the execution, delivery and consummation of this Agreement and all other agreements and documents executed in connection herewith. This Agreement, and all other agreements and documents executed in connection herewith by Licensee, upon due execution and delivery thereof, shall constitute the valid binding obligations of Licensee, enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally and by general principles of equity. Additionally, the execution, delivery and consummation of this Agreement and all other related agreements and documents executed in connection herewith by Licensee will not constitute a violation of, and will not be in conflict with, and will not, with or without the giving of notice or the passage of time, or both, result in a breach of or constitute a default under any agreement or document, or create (or cause the acceleration of the maturity of) any debt, indenture, obligation or liability affecting any and all of the Product, or result in the creation or imposition of any security interest, lien, charge or other encumbrance upon any portion of the Product while in the possession of Licensee or while being used by Licensee, under (a) any term or provision of any and all existing agreements, (b) any contract, lease, indenture, mortgage, pledge, assignment, permit, license, approval or other commitment to which Licensee is bound, (c) any judgment, decree, order, regulation or rule of any court or regulatory authority, or (d) any law, statute, rule regulation, order, writ, injunction, judgment or decree of any court or governmental authority or arbitration tribunal to which Licensee is subject.
12. Unenforceability. In the event that any of the provisions of this Agreement shall be held to be invalid or unenforceable in whole or in part, those provisions shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable parts had not been included in this Agreement.
13. Amendment. This Agreement is subject to change by Corporation at any time and without notice.
14. No Other Agreements. This Agreement replaces and supersedes any prior written or oral agreements, if applicable.
15. Rules and Regulations. Licensee shall be responsible for, and comply with, all applicable rules, regulations, orders, ordinances in connection with the maintenance and preservation of said Product, pursuant to the terms and provisions of this Agreement.
16. Assignment. This Agreement shall inure solely to the benefit of the parties hereto, and their respective permitted successors and assigns. Licensee shall have no right to transfer or assign LicenseeÆs rights or obligations hereunder, without prior written notice to Corporation, and without CorporationÆs express written approval of such transfer or assignment. Corporation, however, shall be free to transfer or assign CorporationÆs interests and/or obligations under this Agreement without notice to Licensee.
17. Entire Agreement. No representations, promise, guarantees or warranties were made to induce any party hereto to the execution of this Agreement, or made in connection therewith, which are not expressly stated in the body of this Agreement.
Using this product means that you accept and agree to the terms and conditions of this agreement. Once use of the product has commences you have accepted and agreed to the terms hereto you hereby acknowledge that you have read and fully understand this Agreement and that you execute this Agreement voluntarily of your own free will.
