MGI Licensing Agreement
The license agreement contained herein is for informational purposes only. The actual license agreement that you will be required to accept or decline is contained in the downloadable version of MGI.
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE INDICATING YOUR ACCEPTANCE BY CHOOSING THE "ACCEPT" BUTTON. THIS AGREEMENT LICENSES THE ENCLOSED SOFTWARE TO YOU AND CONTAINS WARRANTY AND LIABILITY DISCLAIMERS. BY CONTINUING WITH THE INSTALLATION, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT WISH TO DO SO, CHOOSE THE "REJECT" BUTTON. YOU WILL NOT BE ABLE TO USE THE SOFTWARE.
This Agreement is by and between PagePlanet Software (hereinafter "PagePlanet") and you. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and which includes the mutual promises contained herein, the parties agree as follows:
1.1. Modular Gateway Interface (hereinafter "MGI") means the software programs, associated media, documentation (including printed materials and any associated online or electronic documentation), and any multimedia assets (including but not limited to images, graphics, photographs, animations, video, sounds, applets, and behaviors) included in or available as part of the enclosed package or downloadable executable, as well as all related updates supplied by PagePlanet. From time to time PagePlanet may release new versions of MGI which contain improvements. MGI includes both the original version and the new version(s) of MGI.
2.1. MGI is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. MGI is licensed and not sold. This Agreement grants you a limited, non-exclusive license to:
2.1.1. Use MGI on a single computer.
2.1.2. Make one copy of MGI in machine-readable form solely for backup purposes. You must reproduce on any such copy all the copyright notices and any other proprietary legends on the original copy of MGI.
2.1.3 Run one copy of MGI on a secure server for each copy of MGI licensed and running on a non-secure server.
2.1.4. Certain software products are licensed with additional rights as set forth in the Supplementary Rights Addendum that may be included in MGI.
2.2. In the event of an emergency, the holder of a license of MGI is permitted to install and use a second or subsequent copy of MGI apart from the legal use explicitely described in paragraph 2.1.3 with the understanding that the license for the second or subsequent copy of MGI will be purchased from PagePlanet Software, Inc. no later than three business days after the installation.
2.3. Subject to Section 2.2, your license will automatically terminate upon any transfer of MGI. Upon transfer, you must deliver MGI, including any copies and related documentation, to the transferee. The transferee must accept these Terms and Conditions as a condition precedent to a valid transfer.
3. Supplementary Licenses. Certain rights are not granted under this Agreement, but may be available under a separate agreement.
3.1. Multi-User License. You must enter into a Multi-User License if you wish to make copies of MGI for use with additional CPUs owned by you. The Multi-User License allows you and other individuals in your organization to use MGI in perpetuity or for annual renewable periods, whether loaded on separate computers or a network server, as well as on any home or portable computers that any of you may possess, but only so long as each of you uses MGI on just one computer at any time and your organization has paid us our then-current multi-user license fee for the total number of individuals within your organization who will use MGI.
4.1. You may not make or distribute copies of MGI, or electronically transfer MGI from one computer to another or over a network. You may not decompile, reverse engineer, disassemble, or otherwise reduce MGI to a human-perceivable form. You may not modify, rent, resell for profit, distribute, or create derivative works based upon MGI or any part thereof. MGI Output may contain multimedia assets available within MGI (including but not limited to images, graphics, photographs, animations, video, sounds, applets, and behaviors) but these assets may not be distributed separately. You will not export, directly or indirectly, MGI to any country prohibited by the United States Export Administration Act and the regulations thereunder.
4.2. PagePlanet may provide you with support services related to MGI ("Support Services"). Use of Support Services is governed by the MGI polices and programs described in the user manual, in on line documentation, or other PagePlanet-provided materials. Any supplemental software code provided to you as part of the Support Services shall be considered part of MGI and subject to the terms and conditions of this Agreement. With respect to technical information you provide to PagePlanet as part of the Support Services, PagePlanet may use such information for its business purposes, including for product support and development.
4.3. Without prejudice to any other rights, PagePlanet may terminate this Agreement without prior notice if you fail to comply with its terms and conditions. In such event, you must destroy all copies of MGI and all of its component parts.
5. Ownership. The foregoing license gives you limited rights to use MGI. Although you own the disk on which MGI is recorded, if any, you do not become the owner of, and PagePlanet retains title to, MGI (including but not limited to images, graphics, photographs, animations, video, sounds, applets, and behaviors incorporated into MGI), and all copies thereof. All rights not specifically granted in this Agreement, including Federal and international trademarks and copyrights, are reserved by PagePlanet.
6. Limited Warranties.
6.1. PagePlanet warrants that, for a period of ninety (90) days from the date of delivery (as evidenced by a copy of your receipt): (i) when used with a recommended hardware configuration, MGI will perform in substantial conformance with the documentation supplied; and (ii) that the media on which MGI is furnished will be free from defects in materials and workmanship under normal use. EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY, PAGEPLANET DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IF APPLICABLE LAW IMPLIES ANY WARRANTIES WITH RESPECT TO THE PAGEPLANET PRODUCT, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. No oral or written information or advice given by PagePlanet, its dealers, distributors, agents, or employees shall create a warranty or in any way increase the scope of this warranty.
6.2. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY FROM STATE TO STATE.
7. Exclusive Remedy. Your exclusive remedy under Section 6 is to return MGI to the place you acquired it along with a copy of your receipt and a description of the problem. PagePlanet will use reasonable commercial efforts to supply you with a replacement copy of MGI that substantially conforms to the documentation, provide a replacement for the defective media, or refund your purchase price for MGI, at its option. PagePlanet shall have no responsibility with respect to MGI that has been altered in any way, if the media has been damaged by accident, abuse, or misapplication, or if the nonconformance arises out of use of MGI in conjunction with software not supplied by PagePlanet.
8. Limitations of Damages.
8.1. PAGEPLANET SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF PAGEPLANET OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8.2. PagePlanet's total liability for actual damages for any cause whatsoever caused by or alleged to have been caused by MGI will be limited to the amount paid by you for MGI
8.3. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. Basis of Bargain. The limited warranty, exclusive remedies, and limited liability set forth above are fundamental elements of the basis of the bargain between PagePlanet and you. PagePlanet would not be able to provide MGI on an economic basis without such limitations.
10.1. This Agreement shall be governed by the internal laws of the State of North Carolina. This Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. All questions concerning this Agreement shall be directed to: PagePlanet Software, 3252 Octavia Street, Raleigh, North Carolina 27606, Attention: Valerie Crisp.
10.2. Any legal action or proceeding relating to this Agreement shall be instituted in any state or federal court in Wake County, North Carolina. PagePlanet and Customer agree to submit to the jurisdiction of, and agree that venue is proper in, the aforesaid courts in any such legal action or proceeding. If at any time or times hereafter PagePlanet employs counsel to pursue collection, to intervene, to pursue enforcement (by any lawful means) of the terms of this Agreement, or to file a petition, complaint, answer, motion, injunction, or other pleading in any suit or proceeding relating to this Agreement, then in such event, all of the reasonable attorneys' fees costs of collection shall be an additional liability of Customer, payable on demand of PagePlanet.
10.3. If you are a unit or agency of the Government, or acquiring MGI with government funds, the software and documentation are provided subject to PagePlanet's standard commercial license; provided, however, that any contracts with non-defense agencies subject to the FAR, the Government shall have the rights set forth in subparagraph (c) of FAR 52.227-19, "Commercial Computer Software-Restricted Rights," as applicable.
11. Separate FairCom License Agreement for Embedded FairCom Products.
FairComÆ Server License Agreement
CAREFULLY READ THE TERMS OF THIS FairCom Server License Agreement (hereinafter called "Agreement") BEFORE OPENING THE ACCOMPANYING FAIRCOM MEDIA PACKAGE. OPENING THE FAIRCOM MEDIA PACKAGE INDICATES YOUR CONCLUSIVE ACCEPTANCE OF THESE TERMS. IF YOU DO NOT AGREE WITH ANY TERM, CONDITION OR LIMITATION OF THIS AGREEMENT, PROMPTLY RETURN THE UNOPENED MEDIA PACKAGE AND ALL ITEMS ACCOMPANYING THE PACKAGE TO YOUR SUPPLIER. This is a legally binding and enforceable Agreement between you (which is you personally if you are acting on your own behalf or the entity on whose behalf you are acting) and FairCom Corporation, hereinafter called "FairCom".
1. Grant of License. Subject to all the terms, conditions and limitations set forth herein, FairCom grants you the non-exclusive right to use the FairCom Server (comprised of the accompanying FairCom Server software programs, utilities, and documentation, hereinafter collectively called the "Software"), on a single server computer with as many concurrent client computers as the Software is configured to support. You may terminate this Agreement at any time. In the event you violate any term of this Agreement, FairCom may, at its sole discretion, terminate this Agreement. Upon termination of this Agreement, you agree to continue to maintain the Software confidential, immediately destroy all copies of the Software (whether in whole or in part, whether or not modified, whether in source, object or binary executable format) and execute a software destruction affidavit, provided by FairCom upon request, indicating that you have complied with this section.
2. Proprietary Information. You understand and agree that the Software is and remains the confidential property of FairCom and is protected by United States copyright laws and international treaty provisions. You are hereby informed that the Software contains certain "Proprietary Information" which is solely owned by FairCom. "Proprietary Information" means the Software received by you from FairCom or from any third party whether or not under obligation with FairCom to maintain such information as confidential. You agree not to distribute, remove, disclose to any third party, copy or make summaries of the Proprietary Information or utilize said Proprietary Information for any purpose, except as specifically granted herein.
3. Title. The Software is licensed, not sold to you. This license does not transfer to you any ownership interest in the Software or any FairCom trademark or registered trademark, but only a limited right to use the Software strictly in accordance with the terms, conditions and limitations of this Agreement. This license does not permit you or any other person to:
a) disclose or transfer the Software to any person or entity,
except as provided for in Section 6 herein; or
4. Backup Copies. You are permitted to make a maximum of two copies of the Software for backup purposes only. You may not copy the Software for any purpose other than that specified herein. Media which contains the Software must display the following notice: This computer software is the confidential and proprietary property of FairComÆ Corporation. Any unauthorized use, reproduction or transfer of this computer software is strictly prohibited. Copyright 1984-2000, FairCom Corporation. This is an unpublished work and is subject to limited distribution and restricted disclosure only. All Rights Reserved.
5. Assignment of License. You may not rent or lease the Software, but you may permanently transfer all of your rights under this Agreement, provided that you retain no copies of the Software, transfer all of the Software, and the recipient provides to FairCom written acceptance of all of the terms of this Agreement prior to the transfer. If the Software is an upgrade, any transfer must include all prior versions.
6. Trademarks. "FairCom" and FairCom's circular disc logo are registered trademarks of FairCom in the United States and other countries. No right or ownership interest to such trademarks is granted to you herein. You hereby agree that you will not use these trademarks, without the express written consent of FairCom.
7. Disclaimer of Warranties. The entire risk as to the quality and performance of the Software is with you. Should the Software prove defective, you assume the entire cost of all necessary servicing, repair and correction. FairCom does not warrant that the technology contained in the Software will meet your requirements or that the operation of the Software will be uninterrupted or error free. THE SOFTWARE IS LICENSED "AS IS", AND FAIRCOM DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability and Remedies. FairCom's cumulative and total liability to you or any other party for any claim, demand or action arising from or related to this Agreement or your use of the Software (whether in contract, warranty, tort (including negligence), product liability, patent or copyright infringement or any other theory whatsoever), including any damages from computer viruses, shall not exceed the license fee paid to FairCom for the use of the Software even if you paid no fee. In no event shall FairCom be liable for any indirect, incidental, consequential or special damages, exemplary damages, lost profits, or data loss even if FairCom is advised of the possibility of such damages in advance and not withstanding the failure of the essential purpose of any remedy. Any cause of action brought by you under this agreement, whether in contract, tort or otherwise, shall be commenced no later than one (1) year after such right of action accrues and may not be extended for any reason. This limitation of liability and risks is reflected in the price of the software license.
9. Indemnification. You shall defend, indemnify and hold FairCom harmless from any and all claims, damages, losses, liabilities, costs and expenses (including fees of lawyers and other professionals) arising out of or in connection with your use of the Software, whether direct or indirect, including, but not qualified to data loss, business interruption and computer viruses. You shall immediately notify FairCom of any such claim.
10. U.S. Government Restricted Rights. If you are acting on behalf of any unit or agency of the government of the United States of America, hereinafter called the "Government", the following provisions apply:
a) the Government acknowledges FairCom's representation that the Software is "restricted computer software" as that term is defined in Section 27.401 of the Federal Acquisition Regulations and is "commercial computer software" as that term is defined in Section 227.401(1) of the Department of Defense Federal Acquisition Regulation Supplement ("DFARS"); and
b) the Government agrees that if the Software is supplied to the Department of Defense, the Government is acquiring no more than the minimum restricted rights in the Software as the term "restricted rights" is defined in Subparagraph (a)(17) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and the Government agrees that the Software is marked as follows: RESTRICTED RIGHTS LEGEND. Use, duplication or disclosure by the Government is subject to restrictions as set forth in Subparagraphs (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227.7013. FairComÆ Corporation 2100 Forum Blvd., Suite C, Columbia, Missouri 65203-5456.
c) the Government agrees that if the Software is supplied to any unit or agency of the Government other than the Department of Defense, the Government's rights in the Software shall be no more than those rights set forth in Subparagraphs (c)(1) and (c)(2) of the Commercial Computer Software - Restricted Rights, at 48CFR52.227-19, and the Government agrees that the Software is marked as follows: This is an unpublished work and is subject to limited distribution and restricted disclosure only. All Rights Reserved.
11. Export Restrictions. You may not export or reexport the Software or any file created with the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software or any file created with the Software may not be exported or reexported into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other U.S. embargoed country or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. Pursuant to Article 6 of the United Nations Convention on Contracts for the International Sale of Goods (UN Convention), the parties agree that the UN Convention shall not apply to this Agreement.
12. Governing Law. This Agreement is deemed to have been executed and entered into in Boone County, Missouri and shall be construed in accordance with the laws of the State of Missouri. Any dispute concerning or arising out of this Agreement shall be commenced and prosecuted in the appropriate forum or court located in Boone County, Missouri and you hereby consent to personal jurisdiction in such forum or court.
13. Access. You agree and authorize FairCom, or its authorized representative, access to any location where the Software is being used in order to verify that your use of the Software complies with all of the terms, conditions and limitations set forth in this Agreement.
14. Severability. Should any provision of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms of this Agreement.
15. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, power or right herein will operate as a waiver thereof, nor will any single or partial exercise of any right or power herein preclude further exercise of any right herein.
16. Entire Agreement. This Agreement constitutes the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written agreements, understandings, representations or communications between the parties.
17. Survival of Obligations. All of your obligations and responsibilities under this Agreement shall survive its termination for any reason. 000822