IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD NOT DOWNLOAD, INSTALL AND USE THE SOFTWARE.
(a) “Licensor” means Screenster LLC, a Virginia Limited Liability Company.
(b) “Licensee” means the individual or legal entity that is using the Software. For legal entities, “Licensee” includes any entity which controls, is controlled by, or is under common control with Licensee. For purposes of this definition, “control” means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares or beneficial ownership of such entity.
(a) “Authorized User” means (i) if Licensee is an individual, solely Licensee; (ii) if Licensee is a legal entity, any employee, independent contractor and other temporary worker authorized by Licensee to use the Software while performing duties within the scope of their employment or assignment.
(b) “Software” means software program known as Screenster in binary form, including its documentation, upgrades and any third party software programs that are owned and licensed pursuant to this Agreement by parties other than Licensor and that either integrated with or made part of Screenster (collectively, “Third Party Software”).
(c) “Subscription” means free or paid subscription plan that Licensee has chosen for the Software.
(d) “License Key” means a unique key-code that enables Licensee to use the Software. Only Licensor and/or its representatives are permitted to produce License Keys for the Software.
(e) “Server Computer” means a central computer device that is part of Licensee’s LAN and that is dedicated by Licensee to run the Software.
(f) “Client” means a computer device used by Authorized User for accessing the Software.
(e) “User Account” means any registered user account on the Software.
(a) The Software is the property of Licensor or its suppliers. The Software is licensed, not sold. Title and copyrights to the Software, in whole and in part and all copies thereof, and all modifications, enhancements, derivatives and other alterations of the Software regardless of who made any modifications, if any, are, and will remain, the sole and exclusive property of Licensor and its suppliers.
(b) The Software is protected by United States Copyright Law and International Treaty provisions. Further, the structure, organization, and code embodied in the Software are the valuable and confidential trade secrets of Licensor and its suppliers and are protected by intellectual property laws and treaties. Licensee agrees to abide by the copyright law and all other applicable laws of the United States including, but not limited to, export control laws.
4. GRANT OF LICENSE
Subject to the terms, conditions, and limitations set forth in this Agreement, including any amendments thereto, Licensor hereby grants to Licensee a limited, non-exclusive, non-transferable license to use the Software as follows:
(a) Licensee may:
(i) install and use the version of the Software on multiple Clients and operating systems, provided that the total number of user accounts never exceeds the number of Authorized Users allowed by Subscription and that the same user account is not used concurrently by different Authorized Users, on different Clients or operating systems;
(ii) access the Software from Clients via Server Computer if Licensee has obtained Subscription from Licensor. Licensee may install multiple instances of the Software, provided that Licensee complies with restrictions set forth in Paragraph 4 (iii) herein;
(b) Licensee may not:
(i) sell, redistribute (except as set forth in Paragraph 5 herein), encumber, give, lend, rent, lease, sublicense, or otherwise transfer the Software, or any portions of the Software, to anyone without the prior written consent of Licensor;
(ii) reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Software, or create derivative works from the Software;
(iii) allow the use of the same User Account by multiple Authorized Users on different Clients or operating systems at a time. The Software may contain a feature preventing concurrent use of the same User Account by multiple Authorized Users.
5. THIRD PARTY SOFTWARE LICENSE
(a) Licensee agrees to comply with the terms and conditions contained in Third-Party Software license agreements with respect to the applicable Third-Party Software.
(b) Licensee agrees and acknowledges that Sections 10 and 11 of this Agreement shall also govern Licensee’s use of the Third-Party Software. Licensor will have no responsibility with respect to any Third Party Software, and Licensee will look solely to the licensor(s) of the Third Party Software for any remedy. Licensor claims no right in the Third Party Software, and the same is owned exclusively by the licensor(s) of the Third Party Software.
(c) LICENSOR PROVIDES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH RESPECT TO ANY THIRD PARTY SOFTWARE.
6. SUBSCRIPTION AND RENEWALS
Licensee selects its initial subscription term at the time of order. Once that term expires, it will automatically renew for successive terms of the same period (but no longer than 1 year each) unless either Licensee or Licensor cancels the Subscription. Renewals are charged at Licensor’s then-current rates, and Licensor will at its discretion charge Licensee using the credit card on file on or after the expiration date or send the Licensee an invoice. “Subscription Term” means the initial term and any renewal term(s).
(a) Evaluations. For evaluations of the Software, the “Subscription Term” does not apply. Instead, the evaluation period is specified by the Licensor. Notwithstanding anything else in this Agreement, Licensor does not offer any warranty, indemnity or support for any Hosted Services offered on an evaluation basis.
7. RESTRICTED USE DURING EVALUATION PERIOD
(a) Subject to the terms of this Agreement, Licensee is granted a right to use the Software for evaluation purposes without charge for a period of thirty (30) days from the date of installation of the Software unless otherwise specified (“Evaluation Period”).
(b) Licensee’s use of the Software during Evaluation Period shall be limited to the internal evaluation of the Software for the sole purpose of determining whether the Software meets Licensee’s requirements and whether Licensee desires to continue use of the Software.
(c) Upon expiration of Evaluation Period, Licensee must obtain Subscription for continued use of the Software or cease using the Software. The Software contains a feature that will automatically disable the Software upon expiration of Evaluation Period. Licensee may not disable, destroy, or remove this feature of the Software, and any attempt to do so will be in violation of this Agreement and will terminate Licensee’s rights to use the Software.
8. LICENSE FEES AND PAYMENTS
Licensee will pay to Licensor the license fee and other charges and expenses as set forth in an appropriate invoice or other purchase documentation. Licensor may charge Licensee interest for any payment that is more than thirty (30) days past due at the rate of one and one-half percent (1.5%) per month or the highest amount allowed by law, whichever is lower.
(a) Taxes. Payments made by Licensee under this Agreement exclude any taxes or duties payable in respect of the Software in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Licensor, Licensee must pay to Licensor the amount of such taxes or duties in addition to any fees owed under this Agreement.
(b) Audits. Upon Licensor’s written request, Licensee will provide Licensor with a signed certification certifying that all Products are being used pursuant to the terms of this Agreement, including any access and user limitations. With prior reasonable notice of at least ten (10) days, Licensor (or its authorized agent) may audit the use of the Software by Licensee and its Authorized Users and any Customers, provided such audit is during regular business hours. Licensee will provide reasonable assistance and access to information in the course of any audit. Licensee is responsible for such audit costs only in the event the audit reveals that Licensee’s use of the Software is not in accordance with the permitted scope of use. In the event that any certification or audit reveals that Licensee has exceeded its permitted number of Authorized Users, Licensor may invoice Licensee for any past or ongoing excessive use and Licensee will pay the invoice in accordance with Section 5 (Fees and Payment).
Licensee will indemnify, defend and hold harmless Licensor from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any breach by Licensee (including any Authorized Users) of this Agreement, (b) any Licensee Data, (c) any Licensee Modifications, Licensee Plug-ins or other modifications of or combinations with the Software, or any service or product offered by Licensee in connection with or related to the Software, (d) any Uncontrolled Systems, or (e) any representations or warranties made by Licensee (including any Authorized User) regarding the Software to third parties.
10. LIMITED WARRANTY
THE SOFTWARE IS PROVIDED TO LICENSEE “AS IS” AND WITHOUT WARRANTIES. LICENSOR MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR, AND ITS AFFILIATES, SUPPLIERS AND RESELLERS, DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.
11. DISCLAIMER OF DAMAGES
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, LICENSORS, SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE UNDER ANY THEORY FOR ANY DAMAGES SUFFERED BY LICENSEE OR ANY USER OF THE SOFTWARE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SIMILAR DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER ) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b) IN ANY CASE, LICENSOR’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE SOFTWARE DURING THE LAST 12 MONTH PERIOD UNDER THIS AGREEMENT.
12. EXPORT REGULATIONS
Licensee agrees and accepts that the Software may be subject to import and export laws of any country, including those of the European Union and United States (specifically the Export Administration Regulations (EAR)). Licensee acknowledges that it is not a citizen, national, or resident of, and is not under control of the governments of Cuba, Iran, North Korea, Sudan or Syria and is not otherwise a restricted end-user as defined by applicable export control laws. Further, Licensee acknowledges that it will not download or otherwise export or re-export the Software or any related technical data directly or indirectly to the above-mentioned countries or to citizens, nationals, or residents of those countries, or to any other restricted end user or for any restricted end-use.
13. TERM AND TERMINATION
(a) This Agreement will continue so long as Licensee has a license to the Software or an ongoing Subscription Term for the Hosted Services, unless earlier terminated. Licensor may suspend or terminate this Agreement and Licensee’s subscription, with respect to one or more of the Software, if Licensee fails to comply with the terms and conditions of this Agreement, including any failure to pay fees when due. Licensor may terminate any free account or evaluation usage at any time in its sole discretion.
Licensee may terminate this Agreement at any time with notice to Licensor.
(b) Upon the termination of this Agreement, Licensee must delete the Software from its computers and archives at its own cost. Licensee will not be entitled to credits or refunds for any unused portion of this Agreement, including but not limited to unused maintenance and support.
(c) LICENSEE AGREES THAT UPON TERMINATION OF THIS AGREEMENT FOR ANY REASON, LICENSOR MAY TAKE ACTIONS SO THAT THE SOFTWARE NO LONGER OPERATES.
Licensee agree to be identified as a customer of Licensor and that Licensor may refer to Licensee by name, trade name and trademark, if applicable, and may briefly describe Licensee’s business in Licensor’s marketing materials, on Licensor’s web site, in public or legal documents. Licensee hereby grants Licensor a license to use Licensee’s name and any of Licensee’s trade names and trademarks solely pursuant to this marketing section.
(a) Licensor reserves the right at any time to cease the support of the Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.
(b) This Agreement, including the Third Party Software license agreements, constitutes the entire agreement between the parties concerning Licensee’s use of the Software, and supersedes any and all prior or contemporaneous oral or written representations, communications, or advertising with respect to the Software. No purchase order, other ordering document or any hand written or typewritten text which purports to modify or supplement the printed text of this Agreement or any schedule will add to or vary the terms of this Agreement unless signed by both Licensee and Licensor.
(c) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach. The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement will be enforceable notwithstanding said expiration or termination.
(d) This Agreement will be governed by the laws of Virginia, without reference to conflict of laws principles. Licensee agrees that any litigation relating to this Agreement may only be brought in, and will be subject to the jurisdiction of, any Court of Virginia.
(e) Titles are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement. If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect. Either Licensor or Licensee may assign this Agreement in the case of a merger or sale of substantially all of its respective assets to another entity. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and assigns.
For exceptions or modifications to this Agreement, please contact Licensor at: