End User License Agreement
This Agreement is made
between RIVER CITIES SOFTWARE (hereinafter called RCS), and the End User.
ALL RCS PROGRAMS (SOFTWARE), DESCRIPTIVE MATERIALS, SUPPORT MATERIALS, MANUALS AND RELATED ITEMS ARE LICENSED ON THE CONDITION THAT THE LICENSEE AGREES TO THE FOLLOWING END USER LICENSE AGREEMENT.
1. WHEREAS, RCS develops software
(computer programs) and/or has software developed for it, publishes,
distributes, and grants user licenses for such software, along with
accompanying copyrighted documentation, user manuals, and related materials. (The software, user manuals, support
materials, descriptive materials, and
related materials are hereinafter collectively referred to as "LICENSED
SOFTWARE"). RCS hereby grants to End User, and End User accepts, a
non-exclusive, non-transferable license to use the LICENSED SOFTWARE delivered
to End User on a single computer network. The Software shall be used only for the processing of End
User's own business, which shall include
servicing, and maintaining records on behalf of its customers and
clients. End User shall not:(1)permit any third party to use the Software,
(2)use the Licensed Software in the operation of a service bureau, or (3)allow
access to the Licensed Software through stations located outside End
User's business premises unless
specifically agreed to in writing by RCS.
Use licenses are applicable to a single designated network server and/or
business entity. End User shall obtain additional use licenses from RCS for
each additional network server or business entity.
2. End User agrees that End User shall not
transfer or sublicense the rights under
this agreement, and RCS reserves the right to grant licenses to use RCS
software programs and materials to other persons and firms. A copy of the LICENSED SOFTWARE is being
furnished to End User pursuant to this End User License Agreement, in computer
readable format, and on an appropriate medium.
3. All RCS LICENSED SOFTWARE, including
source code, object code, user manuals, all documents and related materials,
("Licensed Software") are copyrighted, trade secrets, or otherwise
proprietary, and all rights are reserved by RCS. End User, as licensee, acknowledges the proprietary nature of RCS
LICENSED SOFTWARE, and agrees to not, directly or indirectly, copy, duplicate,
reverse engineer, decompile, or disassemble, or permit anyone else to copy,
duplicate, reverse engineer, decompile
or disassemble, RCS LICENSED SOFTWARE,
in whole or in part, in any media, without the prior written permission of
RCS. Neither this license nor the
LICENSED SOFTWARE may be sold, leased, assigned, sub-licensed or otherwise
transferred by End User, whether modified or translated into another language
or not (including but not limited to another computer language), except as
provided herein.
4. COPYRIGHTS, TRADE SECRETS, TRADEMARK
NOTICES, LEGENDS AND LOGOS. RIVER
CITIES SOFTWARE logo, product names, software, manuals, documentation
and other support materials ("Licensed Software") are copyrighted,
trademarked, trade secrets, or otherwise proprietary. End User agrees not to remove any such notices and product
identification. The ideas and expressions thereof contained in RCS programs and
materials are acknowledged by End User, as the licensee, to be trade secrets
and vital to the business of RCS. End
User shall not use trade secrets made available through this license to create,
or allow someone else to create, source or object code programs or related
materials in whole or in part, in any media whatsoever. End User agrees that any unauthorized
distributing, copying, duplicating, or otherwise reproducing all or any part or
translated part of RCS LICENSED SOFTWARE provided to End User, or the failure
to protect such LICENSED SOFTWARE, will actually and materially damage
RCS. End User agrees that in the event End
User breaches this Agreement, End User shall be liable for damages as may be
determined by a court of competent jurisdiction.
End User obligations under
sections three (3) and four (4) shall survive termination of this Agreement.
The LICENSED SOFTWARE
contains copyrighted material protected by United States Copyright laws and
other applicable laws. Violation of
those laws may result in criminal and/or civil prosecution.
5. LICENSE. This End User License Agreement is effective from the date the software
is installed on any computer. RCS may discontinue any license or terminate this
agreement if End User, as licensee, fails to comply with any of the terms and
conditions of this End User License Agreement.
5a. The Licensed Software shall be deemed to
have been accepted by End User when it passes RCS's standard test procedures
and is installed on End User's system.
On termination of the End User License Agreement - or discontinuance of
use of the LICENSED SOFTWARE - End User shall immediately return the LICENSED
SOFTWARE and any copies thereof to RCS, and shall certify to RCS that End User
no longer has possession of, or any rights to use, the LICENSED SOFTWARE and
that the original and all copies of the LICENSED SOFTWARE have been returned to
RCS.
6. END USER SUPPORT End User, as licensee, is permitted to make archival (backup)
copies of those portions of RCS programs that are provided on machine readable
media, provided such copies are for End User's personal use on the designated
computer networkand that no more than three such copies are in existence at any
time. End User shall provide RCS necessary and reasonable on-site access,
without charge, to the Licensed Software
and related computing equipment.
End User shall make available to RCS all facilities and services required by RCS for the performance of its
obligations under this Agreement.
End User acknowledges and
agrees that successful implementation of the "Licensed Software"
shall require End User's full cooperation, and End User agrees it shall timely
fulfill its responsibilities, including but not limited to, those set forth in
any subsequent Support or Maintenance Agreements with RCS.
End User agrees that End
User has been advised of the various RCS
Licensed Software Support Agreements available and that if End User
fails to contract for Support Service End User will be charged for any such
service performed at RCS's current fees and terms at the time such service is
rendered.
End user shall
promptly provide RCS with examples of
any suspected error or other
malfunction and any supporting materials that would reasonably enable RCS to
identify suspected problems or errors.
End User shall be
responsible for: maintaining current
archival (backup) copies of the data files and Licensed Software which are
stored and/or maintained on the computer hard disk or on diskette.
End User shall maintain
the proper environment for the computer system. It shall be the sole responsibility of End User to provide a clean, dust free, smoke free,
particulate-matter free, well ventilated, cool, low humidity operating
enviroment,free from static electricity; sufficient power protection for the
System against brownouts, surges, spikes, blackouts and line noise, etc. The System
shall be powered independently from intermittent high-load equipment and
located away from radio transmissions.
It shall be End User's
sole responsibility to provide knowledgeable, qualified personnel to operate
the System.
Training in the use of
"Licensed Software" is available to End User at RCS current policies
and rates. End User shall limit the use
of the Licensed Software to its employees who have been appropriately trained
in their job capacity, and those
who have participated in training
sessions by authorized RCS personnel, From time to time, RCS may require End
User's employees to undergo testing and additional training may be recommended.
RCS SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OF ANY OTHER NATURE, RESULTING FROM OR ARISING OUT OF THE PARTIAL OR TOTAL LOSS OR DESTRUCTION OF DATA, FROM ANY CAUSE WHATSOEVER. IT SHALL BE THE SOLE RESPONSIBILITY OF END USER TO MAINTAIN CURRENT ARCHIVAL (BACKUP) COPIES OF DATA AND/OR PROGRAMS IN AN APPROPRIATE STORAGE MEDIUM.
7. PROGRAM REVISIONS. RCS may,
from time to time, revise the software and materials delivered to End
User. At RCS's option, RCS may provide
such revisions to End User.
8. CUSTOMER SUPPORT. It is the
policy of RCS to provide reasonable assistance and support in the use of its
products to its customers, RCS offers a Support Agreement for Licensed End
Users at RCS current applicable rates. End User, as licensee, should contact
RCS directly for correction of any problems with the LICENSED SOFTWARE. Specific training in the use of the programs
and materials provided under this End User License Agreement will be provided
by RCS according to the training policies in effect, and at current training
fees.
9. LIMITED WARRANTY POLICY. RCS endeavors to provide its End Users with
high quality computer programs and materials.
As with any computer program, material defects, material errors,
material malfunctions, or "bugs" may from time to time appear. (The
terms material defects, material errors, material malfunctions, or
"bugs" shall hereinafter be referred to as "MATERIAL DEFECT"
(A "MATERIAL DEFECT" is defined as being a design fault in the
LICENSED SOFTWARE where a particular function which was supposed to occur,
cannot, due to a design fault.)
Provided that said MATERIAL DEFECT can be duplicated by RCS, RCS will
use its best efforts to assist End User in remedying such MATERIAL
DEFECT provided that such MATERIAL DEFECT is reported to RCS.
10. RCS warrants that Software will conform, as
to all substantial operational features, to RCS's published specifications when installed.
Any change, modification, enhancement, service
or support to the LICENSED SOFTWARE by End User or any third party without
RCS's express written authorization is an unauthorized change or service and
RCS reserves the right to void this Agreement, or, at the sole discretion of
RCS, to provide maintenance that results therefrom at the sole cost of End User
at the applicable time and material rate then in effect for all services
rendered by RCS.
EXCEPT FOR THE WARRANTY DESCRIBED IN THIS PARAGRAPH, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE EXPRESSLY AND SPECIFICALLY DISCLAIMED. END USER AGREES THAT REGARDLESS OF THE FORM OF ANY CLAIM, THE LIABILITY OF RCS FOR ANY DAMAGES TO END USER OR TO ANY OTHER PERSON, FIRM, CORPORATION, OR ENTITY, SHALL BE LIMITED TO REPAIR OR REPLACEMENT, AND SHALL NOT EXCEED THE LICENSE FEES PAID TO RCS TO OBTAIN THE LICENSED SOFTWARE. THIS SHALL BE END USERS EXCLUSIVE RECOVERY. IN NO EVENT, INCLUDING, BUT NOT LIMITED TO, BREACH OF WARRANTY, NEGLIGENCE, OR OTHER TORT OR CONTRACT CLAIM, SHALL RCS BE RESPONSIBLE FOR ANY DIRECT, INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES OR LOST PROFITS, OR INTERRUPTION OF BUSINESS, EVEN IF RCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO END USER.
RCS DOES NOT WARRANT
THAT THE OPERATION OF THE LICENSED SOFTWARE AND/OR "SYSTEM" WILL BE UNINTERRUPTED OR ERROR FREE.
IN NO EVENT SHALL RCS
BE LIABLE FOR ANY DELAY IN PERFORMANCE DIRECTLY OR INDIRECTLY DUE TO ACTS OF
END USER, ITS AGENTS, EMPLOYEES, SUBCONTRACTORS, OR ANY CAUSES BEYOND RCS'S
CONTROL.
11. GOVERNING LAWS. This End
User License Agreement is to be governed by and interpreted in accordance with
the laws of the State of Texas. If any
term this Agreement shall be declared by final adjudication to be illegal or
contrary to the public policy of the State of Texas, it shall not affect the validity of any other term or provision of
this End User License Agreement.
Any action against RCS
under this Agreement must be commenced within one (1) year after such cause of
action arises.
12. MISCELLANEOUS RCS shall not be liable because of a delay or failure to perform
hereunder when such delay or failure is due to an Act of God, nature, or a
federal, state or local government agency, war, civil disturbance, labor
disputes or shortages, electrical or mechanical breakdowns (including but not
limited to hardware or Operating System malfunction or failure), operator or
End User error, failure of End User to maintain current backup copies and
computer system environment, strikes, manufacturer delay, delay or default of
carriers, and/or any other cause beyond
RCS's control.
13. NON ASSIGNMENT Neither this Agreement
nor any rights or obligations hereunder may be assigned or transferred by End
User without the written consent of RCS. Such assignment shall not relieve End
User of its obligations under this Agreement.
Notwithstanding the above, nothing in
this Agreement shall prevent RCS from assigning this Agreement to the
subsidiaries or affiliates of RCS.
14. CONSTRUCTION This Agreement and its incorporated
Schedules constitute the entire agreement between RCS and End User superseding
all previous communications and negotiations, whether written or oral. The terms and conditions of this Agreement
shall prevail over any additional or conflicting terms of any service order,
purchase order, or memorandum submitted to RCS by End User.
Except as otherwise provided
in this Agreement, no modification of this Agreement shall be binding unless it
is in writing and signed by RCS.
The paragraph headings
contained in this agreement are inserted for identification purposes only and
shall not be deemed a part of this agreement for purposes of interpretation.
Whenever used in this
agreement, the singular shall include the plural and the plural the singular,
and the use of any gender shall be applicable to all genders.
15. NOTICES Unless otherwise provided in this Agreement, any notice required
or permitted hereunder to the parties hereto shall be deemed to have been duly
given if in writing and mailed by first class certified mail, return receipt
requested, postage prepaid. If intended
to be given to End User, addressed to End User at the address set forth herein,
and if intended to be given to RCS, addressed to RCS at the address set forth
herein, or at such other address as the party to whom such notice is given may
have designated in writing to the other party.
16. NON-WAIVER OF PROVISIONS No failure to exercise, and no delay in
exercising, on the part of RCS, any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise by RCS of
any right, or privilege hereunder preclude any such further exercise thereof.
17. LEGAL ACTION. If any legal action is brought by RCS
regarding the subject matter of this End User License Agreement against the End
User, RCS shall be entitled to recover, in addition to any other relief, reasonable
attorney fees and expenses. It is
understood by End User, and agreed that, notwithstanding any other provisions
of this End User License Agreement, RIVER CITIES SOFTWARE, in order to
protect its proprietary rights in the LICENSED SOFTWARE delivered to End User
under this License Agreement, has the unequivocal right to obtain timely
injunctive relief, and to prohibit End User from using RCS's LICENSED SOFTWARE
in violation of the terms and conditions of this End User License Agreement.
18. PROPRIETARY RIGHTS The LICENSED SOFTWARE and Materials are, and
shall at all times remain, the exclusive property of RCS and/or
the program author. End User shall have
no right, title or interest therein, except as expressly set forth in this End
User License Agreement.
RCS may disclose to End
User or End User may otherwise learn of information belonging to RCS including
trade secrets, formulae, proprietary programs, technical know-how, methods of
operation and other materials which have been developed at great time and
expense by RCS, are the valuable assets of RCS, and are confidential in
nature. Any such information shall be
kept strictly confidential by End User.
In order to fulfill End
User's obligations under this Agreement, End User shall take specific action to
safeguard RCS's confidential information, including restricting access to such
information to those of its employees who have need of it in order to perform
their normal business activities.
End User agrees that an
Update or Enhancement to the LICENSED SOFTWARE developed by RCS, whether or not
reimbursed by End User, and whether or not developed in conjunction with End
User's employees or agents, shall be the exclusive property of RCS and/or the
program author.
End User further agrees
that updated or enhanced versions of the LICENSED SOFTWARE shall not constitute
a program different from the LICENSED SOFTWARE and shall not create any ownership or authorship rights in the
End User.RCS may accept suggestions for enhancements and/or additions to the
LICENSED SOFTWARE, but reserves the right and shall have final authority to
include or exclude any suggestions for enhancements and/or additions into RCS
software products. Should RCS accept
and incorporate your suggestions for enhancements and/or additions into RCS
products, RCS and/or the program author shall retain full and complete
ownership and authorship of the programs and related materials, of any
revisions, modifications, enhancements of existing programs, and any new
programs. All rights are reserved
worldwide by RCS.
End User may develop an Enhancement or addition to the LICENSED SOFTWARE for its own use only with RCS's prior express written permission, and agrees that such Enhancement or addition, whether or not developed in connection with RCS's employees or agents, or developed by a third party, shall not be deemed to create a new program different from the LICENSED SOFTWARE, shall be the exclusive property of RCS, and shall not create ownership or authorship rights in the End User, or any third party.