End User Mandatory Flow-Thru Terms
1 License Grant & Restrictions
1.1 License Grant.
The Licensed Product(s) are licensed only and are not sold to You. TechOnline is licensed by Connected Corporation to sub-license the Products to You. TechOnline hereby grants, and You accept, a non-exclusive, non-assignable, non-transferable, non-sublicensable, limited license to use the Licensed Products in machine readable form only, and to utilize the Licensed Product(s), for Your individual use only in the manner in which such Licensed Products were intended for the term indicated when You downloaded the Licensed Products from TechOnline's web pages and/or purchased the Licensed Products from TechOnline (hereinafter referred to as the "Term"). You may make one (1) copy of the Licensed Product(s) solely for backup purposes. You may use the Licensed Product(s) within or in conjunction with any other software, subject to the terms and conditions contained herein, and any use shall always remain subject to this Agreement.
1.2 License Restriction.
You shall display and retain TechOnline's and/or its suppliers' copyright, trademark, proprietary, or confidentiality statement and other notices on any portion of the Licensed Products, however such Licensed Products are used. You shall (i) not attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Licensed Product or any portion thereof, or otherwise derive its source code; (ii) not modify, port, translate, localize or create derivative works of the Licensed Product; (iii) not disclose the results of any performance tests or qualitative analysis on the Licensed Products(s) to any third party without the prior written consent of TechOnline; (iv) not use the Licensed Product(s) on a server, ("server" shall mean a system that is used to access or is accessed by and/or stores data for multiple personal computers); (v) not use the Licensed Product(s) on personal computer systems used for extensive multimedia processing including but not limited to, storing, processing or playing very large quantities of picture, video, and/or sound files; (vi) not use the Licensed Product(s) in a way that (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including, but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (c) is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; (d) is obscene, pornographic or indecent in violation of applicable law; or (e) to propagate any virus, worms, Trojan horses or other programming routine intended to damage any system or data; (vii) not use the Licensed Product(s) in any application that may involve risks of death, personal injury, severe property damage or environmental damage, or in any life support applications, devices or systems and (viii) not use a total number of licenses in excess of the total amount allocated to You. The license granted hereunder is specific to You only, and is not transferable to any other person or business entity, including subsidiaries and successors-in-interest to You, without the prior written consent of TechOnline.
2 EU Data Protection Act; Export Controls
2.1 European Union Data Protection Act.
In accordance with Commission Decision 2002/16/EC of 27 December 2001 on standard contractual clauses for the transfer of personal data to third countries, under Directive 95/46/EC, the Annex titled "Standard Contractual Clauses" is hereby incorporated by reference in its entirety. With respect to such Annex the "data exporter" shall be defined as "You" and the "data importer" shall be defined as "TechOnline". You may find a complete version of the text at:
http://europa.eu.int/eurlex/pri/en/oj/dat/2002/1_006/1_00620020110en00520062.pdf
2.2 Export Controls.
You understand that the Licensed Products are subject to regulation by agencies of the United States Government, as well as the laws and regulations of other applicable countries which prohibit export, importation or diversion of certain technological products or services to certain countries and individuals. You hereby specifically agree to comply in all respects with such export, re- export, and/or import restrictions. You further agree not to export/import or attempt to export/import the Licensed Products without the prior written consent of TechOnline. You may not export/import or re-export/import the Licensed Software (or provide to a national of) countries in the US Government Country Group E:1 or E:2 without a license or license exception from the U.S. Department of Commerce nor otherwise violate any provisions of U.S. export laws.
3 Intellectual Property Rights
3.1 Intellectual Property Rights.
All intellectual property rights in and to the Licensed Products shall remain the property of Connected and TechOnline (and/or its suppliers if applicable), exclusively. You shall have no right in or to the Licensed Products except as expressly set forth in this Agreement. Intellectual property includes, but is not limited to, patents, inventions, invention disclosures, Marks (as defined below), trade secrets, know-how, formulae and processes, software programs, proprietary data and databases, copyrights and all other similar items of intellectual property, whether registered or unregistered, including any rights created thereof, all proceeds thereto, and the right to sue for past, present and future infringements. All rights not expressly granted hereunder by Connected or TechOnline are reserved for the respective party (and/or its suppliers, if applicable). Connected and TechOnline retain the rights in and title to their respective trade names, trademarks, service marks, logos, domain names and other branding elements and identifiers (the "Marks"), and any other intellectual property previously or generally developed by Connected, TechOnline, its suppliers or affiliates. You shall not copy, use, display, distribute or transfer the Marks or other Intellectual Property of Connected or TechOnline, except as expressly provided by this Agreement.
3.2 Data content disclaimer.
You expressly recognize that TechOnline does not create, operate, control or endorse any data, information, third-party products, processed by the licensed products or services provided via any licensed products hereunder, including but not limited to, information obtained. TechOnline does not make any express or implied warranty, representation or endorsement to you or any third party whatsoever with regard to any data, information, products or services provided in conjunction with the licensed products, including, without limitation, warranties of: 1) merchantability; 2) fitness for a particular purpose; and 3) non-infringement. TechOnline shall not be liable to you or any third party for any cost or damage arising, either directly or indirectly, from any loss of data.
4 Limited Warranty & Disclaimer
4.1 Licensed Product(s) Limited Warranty.
TechOnline warrants that the Licensed Product(s) will conform substantially in accordance with its documentation for ninety (90) days from delivery. If TechOnline confirms a defect reported by You in the unaltered Licensed Product(s), TechOnline will use commercially reasonable efforts to remedy the nonconformance. TechOnline does not warrant that the operation or utilization of any Licensed Product(s) will be uninterrupted or error free, nor does it guarantee that its remedial efforts will correct any nonconformance. Corrections will be warranted for the remainder of the original warranty period. If any Licensed Products fails to comply with any warranty set forth in this Section and TechOnline does not remedy such failure as required by this Section, TechOnline's obligation and liability, and Your exclusive remedy, for such failure shall be limited to the refund in a maximum amount equal to the license and maintenance fees paid by You within the last six (6) month period prior to such failure, excluding reasonable amounts for past use, for such Licensed Products, upon the return of such Licensed Products to TechOnline, in which event this Agreement shall terminate with respect to such Licensed Products. You expressly recognize and acknowledge that such limitation of liability is an essential part of this Agreement and is an essential factor in establishing the price of the Licensed Products. This shall be your sole and exclusive remedy for any breach of warranty.
4.2 Data content disclaimer.
You expressly recognize that TechOnline does not create, operate, control or endorse any data, information, third-party products, processed by the licensed products or services provided via any licensed products hereunder, including but not limited to, information obtained. TechOnline does not make any express or implied warranty, representation or endorsement to you or any third party whatsoever with regard to any data, information, products or services provided in conjunction with the licensed products, including, without limitation, warranties of: 1) merchantability; 2) fitness for a particular purpose; and 3) non-infringement. TechOnline shall not be liable to you or any third party for any cost or damage arising, either directly or indirectly, from any loss of data.
4.3 General disclaimer.
TechOnline makes no warranty of any kind, whether expressed or implied, written or oral, except as expressly stated herein. Additionally, TechOnline disclaims all other warranties, expressed and implied, including without limitation, the implied warranties of merchantability, fitness for a particular purpose and freedom from infringement with respect to all licensed products, updates, upgrades, new releases and all other products, services, materials and other items furnished under, or in connection with, this agreement.
5 General Limitation of Liability
5.1 Limitation of Liability.
TechOnline's (and its suppliers') entire liability, and Your exclusive remedy, for any and all claims arising under or in connection with this Agreement or related to any item or service provided under or in connection with this Agreement, regardless of the form of the action (including negligence), whether in breach of warranty, contract, tort, strict liability or otherwise, shall be limited to a maximum amount equal to the license and maintenance fees paid within the last six (6) month period prior to such loss. You expressly recognize and acknowledge that such limitation of liability is an essential part of this Agreement and is an essential factor in establishing the price of the Licensed Products. You shall cause your insurers of data, if any, to waive any right of subrogation against TechOnline.
5.2 Exclusion of damages.
In no event shall TechOnline (nor any of its suppliers) be liable for damages resulting from loss of data, lost profits, business interruption, lost revenue, or lost business, in connection with the use of any licensed product or any other item or service provided under this agreement, nor for costs of procurement of substitute goods, nor for any special, indirect, incidental or consequential damages arising out of, or in connection with, this agreement or any product, service or other item provided under this agreement, whether in breach of warranty, contract, tort, strict liability or otherwise (including negligence), even if TechOnline has been advised of the possibility of such damages.
5.3 Limitations Period.
To the extent permitted by law, neither party may bring any action under this Agreement for any cause whatsoever more than two (2) years after the occurrence giving rise to such cause of action; provided, however, that this Section shall not apply to any action brought by TechOnline to protect its intellectual property rights or confidential information.
5.4 No Waiver.
If either party fails to perform any of its obligations hereunder and the other party fails to enforce the provisions relating thereto, such party's failure to enforce this Agreement shall not prevent its later enforcement.
5.5 Severability.
If any provision of this Agreement is determined by a court to be, or becomes, invalid, unenforceable or illegal, such provision shall be (a) modified to be made valid, enforceable and legal in such a manner as to best effectuate the intent of the parties on the date hereof or (b) deemed eliminated where such modification is not practicable; the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such modification or deletion.
