NOTICE TO USERS: THIS IS A LEGAL AGREEMENT. PLEASE READ ALL ITS TERMS AND CONDITIONS AND INDICATE YOUR AGREEMENT TO THEM BY CLICKING ON THE "ACCEPT" BUTTON BELOW. IF YOU DO NOT AGREE, CLICK THE "DO NOT ACCEPT" BUTTON BELOW TO EXIT THIS SCREEN, AND YOU MAY NOT INSTALL OR USE THE SOFTWARE.
This license agreement ("Agreement") is between you and INTERMIND CORPORATION, a Washington corporation ("Intermind"), governing your use of the Software, defined below.
1. DEFINITIONS. In addition to capitalized terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
(a) "Documentation" means the instructions, users' guides, and manuals that Intermind delivers to you, whether in printed or electronic form, describing the installation, functions, use and operation of the Software.
(b) "Software" means the object code version of the Personal Edition of Intermind's Intermind Communicator software (the "Software") which you are about to download, and which allows you to prepare and transmit messages to Subscribers from your website (acting as a "Publisher"), and which allows Subscribers to receive such messages.
(c) "Subscriber" means a user of a website who affirmatively chooses to receive messages from the website operator through use of the Software.
2. LICENSE GRANT. You are hereby granted a non-exclusive, non-transferable license to use the Software, subject to the terms and conditions of this Agreement. All other rights are reserved to Intermind. You shall not rent, lease, sell, sublicense, assign or otherwise transfer the Software. You shall not modify or make derivative works of the Software, or reverse engineer, decompile, decipher, or disassemble the Software (except to the extent applicable laws specifically prohibit such restriction). Intermind shall retain title and all ownership rights in and to the Software and Documentation and all copies thereof. The Software is protected by the copyright laws of the United States and international copyright treaties.
This Agreement gives you no rights to content accessed through the Software, which is the property of the applicable content owner and/or holder of rights therein, and from whom it is your responsibility to obtain necessary permission before using, copying, publishing, or distributing such content. Your license to use the Software is also subject to the following terms and conditions:
(a) You may use the Software free of charge: (i) indefinitely, as a Subscriber; (ii) indefinitely, as a Publisher on your own website, if you are an individual or a non-profit entity; or (iii) for a period of thirty (30) days, as a Publisher, if you are a for-profit entity (in all cases unless this Agreement has otherwise been terminated in accordance with its terms). If you are a for-profit entity, your license to use the Software as a Publisher will automatically terminate without notice after such 30-day period unless you have upgraded to an Intermind "Global Publisher" or "Intranet Publisher" license.
(b) You may make copies of the Software for backup or archival purposes. You acknowledge that the laws and regulations of the United States restrict the export and re-export of certain commodities and technical data of United States origin. You agree that you shall not export or re-export the Software.
(c) You shall use the icons designated by Intermind (the "Intermind Icons") to indicate the location on your website where Subscribers may access the Software.
3. LICENSE TO INTERMIND MARKS. You acknowledge that Intermind, Intermind Communicator, the Intermind Icons, and other marks and icons used by Intermind with the Software from time to time (the "Intermind Marks") are trademarks of Intermind. Intermind hereby grants to you a non-exclusive, limited license to use the Intermind Marks solely in connection with your use of the Software. Your use of the Intermind Marks shall be in accordance with Intermind's policies regarding trademark usage as established from time to time by Intermind in its discretion. You understand and agree that your use of any Intermind Marks shall not create any right, title or interest in or to the Intermind Marks and that all such use and goodwill associated with the Intermind Marks will inure to the benefit of Intermind.
4. LIMITED WARRANTY. Intermind warrants to you that the Software will perform substantially as described in the Documentation for a period of thirty (30) days from its download by you, if unaltered and properly installed and operated on hardware for which it is designed. OTHER THAN THE ABOVE LIMITED WARRANTY, THE SOFTWARE IS DELIVERED "AS IS" AND INTERMIND DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, regardless whether Intermind knows or has reason to know of your particular needs. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state. This warranty does not apply to any use of the Software: with other software not supplied by Intermind, not in accordance with the Documentation or other applicable instructions, or in violation of this Agreement. The agents and employees of Intermind are not authorized to make any warranties on behalf of Intermind, and any representations by them, oral or written, do not constitute warranties by Intermind and should not be relied upon. No action for any breach of the above limited warranty may be brought more than one (1) year following the expiration date of the warranty.
If you give written notice of nonconformity with the express limited warranty above to Intermind at the address indicated in Section 14 below within the first thirty (30) days after the Software is downloaded by you and certify that you have destroyed all copies of the Software in your possession, Intermind shall refund all license fees (if any) which Intermind has received from you pursuant to this Agreement, and this Agreement shall be terminated. The foregoing is your SOLE AND EXCLUSIVE REMEDY for any breach of warranty.
5. LIMITATIONS OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER BASED IN NEGLIGENCE, TORT, CONTRACT OR OTHERWISE, SHALL INTERMIND BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, INCOME, USE OR INFORMATION, EVEN IF INTERMIND SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. Some states do not allow exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
IN NO EVENT SHALL INTERMIND'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF LICENSE FEES PAID BY YOU (IF ANY) FOR THE SOFTWARE.
6. TERMINATION. This Agreement shall be effective until terminated. This Agreement and the license granted under it will terminate automatically without notice if you violate any part of this Agreement. Upon termination of this Agreement, you shall immediately discontinue use of the Software and shall within five (5) days return to Intermind, or certify to Intermind in writing that you have destroyed, all full or partial copies of the Software and Documentation. You may also terminate this Agreement at any time by destroying the Software, Documentation and all copies thereof in your possession, and certifying in writing to Intermind that you have done so.
7. RIGHTS OF OTHERS; INDEMNIFICATION. You will not use the Software to send, modify, reproduce, transmit or otherwise use any information, materials or other content in violation of applicable laws or another party's rights, and will hold harmless and indemnify Intermind, its successors and assigns from and against all claims, damages or expenses (including reasonable attorneys' fees) arising in connection with such or any other use by you.
8. DEMOGRAPHIC INFORMATION. You acknowledge and agree that Intermind may collect, use and distribute demographic data about you, provided that Intermind will not use or distribute any individual-specific information that personally identifies you.
9. GOVERNING LAW; ATTORNEYS' FEES. This Agreement shall be governed by the laws of the State of Washington without regard to that body of law known as conflicts of law. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
10. NO JOINT VENTURE. The sole relationship between you and Intermind shall be that of licensor and licensee. Neither you nor Intermind shall make any warranties or representations, or assume or create any obligations, in connection with the Software or otherwise, on the other's behalf. Each of you and Intermind shall be solely responsible for the actions of all their respective employees, agents and representatives.
11. NO ASSIGNMENT. You shall not transfer or assign any rights or delegate any obligations hereunder, in whole or in part, without the prior written consent of Intermind. Any purported transfer, assignment or delegation by you without such consent shall be null and void and of no force or effect. Notwithstanding the foregoing, you shall have the right, upon written notice to Intermind, to assign this Agreement and the obligations hereunder to any successor by way of merger or consolidation or the acquisition of substantially all of your business and assets relating to this Agreement. Subject to the provisions of this paragraph, this Agreement shall be binding upon and inure to the benefit of each party's successors and assigns.
12. WAIVER. Any of the provisions of this Agreement may be waived by the party entitled to the benefit thereof. Neither party shall be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.
13. ENTIRE AGREEMENT. This Agreement constitutes the complete and exclusive agreement between you and Intermind with respect to the subject matter it covers, and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein. This Agreement may not be modified except in a writing duly signed by an authorized representative of you and Intermind. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU FOR THE SOFTWARE AND/OR DOCUMENTATION IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, AND INTERMIND AGREES TO FURNISH THE SOFTWARE AND DOCUMENTATION ONLY UPON THE TERMS OF THIS AGREEMENT AND NOT THOSE CONTAINED IN YOUR PURCHASE ORDER.
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be revised only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability (i) of such provision under other circumstances, or (ii) of the remaining provisions of this Agreement under all circumstances. Headings shall not be considered in interpreting this Agreement.
14. U.S. GOVERNMENT RESTRICTED RIGHTS. Use, duplication or disclosure of the Software by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement. Contractor/manufacturer is Intermind Corporation, 217 Pine Street, 8th Floor, Seattle, Washington 98101-1500.
15. CONFIDENTIAL INFORMATION. You acknowledge that the Software and all other information related to Intermind's business, products or methods of operation which is not generally known to the public is strictly confidential and is a valuable asset of Intermind, whether such information is copyrighted, privileged, proprietary, trade secret, intellectual property or otherwise (individually and collectively, "Intermind's Confidential Information"), and agree that you will not use or disclose such Confidential Information, directly or indirectly, in whole or in part, other than as permitted by this Agreement. Confidential Information does not include any information which: (i) is or becomes a matter of general public knowledge through no breach of a duty of non-disclosure, (ii) is independently developed or obtained by the receiving party as evidenced by competent written proof, and/or (iii) is required to be disclosed by applicable law.
