This Agreement is made between purchaser (the "Licensee") and Vortarus Technologies LLC (the "Licensor").
(a) "Software" means the computer program Diagram Master and associated documentation.
(b) "Install" means placing the Software on a computer's hard disk, CD-ROM or other secondary storage device.
(c) "Use" means (i) executing or loading the Software into computer RAM or other primary memory, and (ii) copying the Software for archival or emergency restart purposes.
- GRANT OF RIGHTS. Licensor hereby grants to Licensee a nonexclusive license to install and use the Software on one single user computer in its possession and a secondary copy for back-up.
- LICENSE TERM. This License is effective at the time of purchase and the license granted to the Software remains in force until Licensee stops using the Software or until Licensor terminates this License because of Licensee's failure to comply with any of its terms and conditions.
- TERMINATION. Licensor shall have the right to immediately terminate this License if Licensee fails to perform any obligation required of Licensee under this License.
- DESTRUCTION OF SOFTWARE UPON TERMINATION. Upon termination of this License, Licensee shall destroy the original and all copies of the Software including partial copies and modifications.
- TITLE TO SOFTWARE. Licensor retains title to and ownership of the Software and all enhancements, modifications and updates of the Software.
- MODIFICATIONS AND ENHANCEMENTS. Licensee will make no efforts to reverse engineer the Software, or make any modifications or enhancements without Licensor's express written consent.
- WARRANTY LIMITATIONS. THE SOFTWARE IS PROVIDED "AS IS." LICENSOR DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO, ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
- REMEDY LIMITATIONS. Licensor's entire liability and Licensor's sole and exclusive remedy for breach of the foregoing warranty shall be Licensor's option to either:
- return to Licensee the license fee for the period in which the Software did not perform according to this warranty, or
- repair the defects or replace the Software.
- DAMAGE LIMITATIONS. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING LOSS OF PROFITS, AND LICENSOR'S LIABILITY TO LICENSEE FOR ANY OTHER DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT WHETHER IN CONTRACT, TORT, OR OTHERWISE WILL BE LIMITED TO THE AMOUNT RECEIVED BY LICENSOR FROM LICENSEE AS COMPENSATION FOR THE SOFTWARE DURING THE 2 MONTH PERIOD IMMEDIATELY PRIOR TO THE TIME SUCH CLAIM AROSE.
- CONFIDENTIALITY. Licensee will treat the Software as a trade secret and proprietary know-how belonging to Licensor that is being made available to Licensee in confidence. Licensee agrees to treat the Software with at least the same care as it treats its own confidential or proprietary information.
- ARBITRATION. The parties agree to submit any dispute under this License to binding arbitration under the rules of the American Arbitration Association in the following location: Montgomery County Texas. Judgment upon the award rendered by the arbitrator may be entered in any court with jurisdiction to do so.
- ATTORNEY FEES. If any legal action is necessary to enforce this License, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses in addition to any other relief to which it may be entitled.
- GENERAL PROVISIONS.
(a) Complete Agreement: This License Agreement constitutes the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements, representations and documentation relating to the subject matter of this Agreement.
(b) Modifications: Modifications and amendments to this Agreement, including any exhibit, schedule or attachment hereto, shall be enforceable only if in writing and signed by authorized representatives of both parties.
(c) Applicable law: This License will be governed by the laws of the State of Texas.
(d) Notices: All notices and other communications given in connection with this License shall be in writing and shall be deemed given as follows:
-When delivered via email;
- When delivered personally to the recipient's address; or
- Seven days after being deposited in the United States mail, postage prepaid to the recipient's address.
(e) No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.
- ASSIGNMENT. The rights conferred by this License shall not be assignable by the Licensee without Licensor's prior written consent. Licensor may impose a reasonable license fee on any such assignment.