Child's Play 5

EULA - End User License Agreement

Child's Play: END USER LICENSE
IMPORTANT-READ CAREFULLY.
By accepting this Agreement and/or using Software and Services, LICENSEE agrees to be bound by the terms of this Agreement. For purposes of this Agreement, the term LICENSEE shall include individuals, the subscribing company and its officers, directors, shareholders, employees, agents and assigns.
1. Software and Services To Be Provided. Subject to the terms of this Agreement, Lori Alston dba Alston Software Labs (hereinafter ASL) agrees to provide LICENSEE, directly or through ASL subcontractors and affiliates, with the use of the Software and supporting Services specified on the reverse side of this Agreement.
2. Other Rights And Limitations. During the term of this Agreement:
2.1 Use. The use of the Software and Services is for a single installation. LICENSEE may not permit or allow any third party or "pool" of users to use or have access to the Software or Services, whether in a retail establishment, by timesharing, networking, service bureau operations, renting, leasing or otherwise. Furthermore, LICENSEE agrees not to use the Software and Services in any manner that disrupts third parties' use or enjoyment of the Service.
2.2 Compliance with Law. LICENSEE will use the Software and Services offered by ASL in a manner consistent with all applicable local, state and federal laws and regulations.
2.3 Restrictions on Transfer. LICENSEE may not assign, sublicense, lease, encumber or otherwise transfer or attempt to transfer the Software and Services or any portion thereof. LICENSEE may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of ASL. Any attempted assignment in violation of this Section by LICENSEE of LICENSEE's rights or obligations under this Agreement, whether by operation of law or otherwise, will have no force and effect.
2.4 Upgrade and Support. ASL desires LICENSEE'S feedback and suggestions for continual improvement of Software and Services and LICENSEE has authority to and hereby grants ASL full, unencumbered rights to use such feedback and suggestions. ASL has no obligation to provide any specific support, maintenance, upgrades, modifications, or new releases under this Agreement. Support, maintenance, upgrades, modifications and new releases provided are at the sole discretion of ASL and LICENSEE shall be notified of such items at LICENSEE's last address reported to ASL.
3. Ownership And Disclosure Of Intellectual Property.
3.1 Services and Software. ASL and its licensors have and will retain all right, title, and interest and ownership in and to the Software, Services and products. LICENSEE acknowledges that the Software and Services constitute proprietary information and trade secrets of ASL and its licensors, whether or not any portion thereof is or may be the subject of a valid copyright or patent. The Software and Services are protected under international copyright, trademark and trade secret and or patent laws.
3.2 LICENSEE has no right to or interest in the Software and Service (including all associated patents, copyrights, trademarks, trade names, trade secrets, or other intellectual property rights.) Furthermore, LICENSEE's right to use the Software and Services under this Agreement does not give LICENSEE any right to receive, use or examine any source code or design documentation relating to the software used to provide use of the Software and Services. LICENSEE may not modify, translate, decipher, decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Software and Services by any means whatsoever. LICENSEE may not (or allow any third party to) modify or incorporate any portion of the software used to provide the Software and Services into any other software or create a derivative work, or develop any other product or allow any third party to access the Software and Services, or the software associated therewith. LICENSEE is solely responsible for the content of any transmission across LICENSEE's network from, to, by, on behalf of, or for LICENSEE's benefit, including all electronic data transmitted to ASL ("User Content").
4. Indemnification And Limited Warranties
4.1 DISCLAIMER. LICENSEE acknowledges and agrees that LICENSEE has independently determined whether the Software and Services are appropriate for LICENSEE's specific purposes for which LICENSEE intends to use them, and that LICENSEE did not rely upon the skill or judgment of, nor any representations by ASL, its employees, agents, intermediaries, materials suppliers or distributors or any other entity in such selection. LICENSEE acknowledges the risks associated with the open structures of the Internet and the transmission of data through such means. LICENSEE assumes the entire risk related to the use and resulting output of the Software and Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ASL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED (STATUTORY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OF THE COMPUTER PROGRAM, INFORMATION CONTENT, FITNESS FOR LICENSEE'S PURPOSE, SYSTEM INTEGRATION AND NON-INFRINGEMENT, CONCERNING THE SOFTWARE AND SERVICES AND THE TRAINING, APPLICATION, OPERATION OR USE THEREOF. However, an express limited warranty is granted to the extent the Software shall function in a stable environment without error rendering the Software unusable.
FURTHERMORE, LICENSEE IS WHOLLY AND EXCLUSIVELY RESPONSIBLE FOR OBTAINING ALL REQUIRED OR RECOMMENDED ARCHITECTURAL, ENGINEERING OR OTHER CODE ADHERING APPROVALS PRIOR TO CONSTRUCTION OF ANY BUILDING ESTIMATED USING THE SOFTWARE AND SERVICES. LICENSEE FURTHER UNDERSTANDS AND ACKNOWLEDGES THAT NEITHER ASL OR ITS SOFTWARE AND SERVICES MAKE ANY REPRESENTATIONS OR CLAIMS AS TO THE STRUCTURAL, ENGINEERING, ARCHITECTURAL OR OTHER FITNESS OF ANY STRUCTURE OR ANY OF THE MATERIALS LISTED IN ESTIMATES GENERATED BY THE SOFTWARE.
4.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ASL OR ITS LICENSORS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY DAMAGES ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL, OR OTHERWISE, OR FOR LOSS OF OR CORRUPTION OF DATA, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, IRRESPECTIVE OF WHETHER SUCH LOSS OR DAMAGE IS FORESEEABLE BY ASL, AND EVEN IF ASL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. In any the cumulative liability of ASL or its licensors to LICENSEE for all claims related to the Software and Services and this Agreement shall not exceed the total amount LICENSEE paid to ASL for the Software and Services provided under this Agreement.
4.3 Indemnification. ASL shall have the right, but not the obligation, to defend or settle, at its option, any suit arising from a claim that the Software and Services under this Agreement infringe any third party's patent, copyright, or trade secret rights. LICENSEE agrees to provide ASL with written notice of any such claim within ten (10) days of LICENSEE's notice thereof and provide ASL with all information and assistance ASL requests in connection any defense or settlement of such claim. ASL's agreement to indemnify LICENSEE hereunder is limited in amount to the service fee paid by LICENSEE to BIZPORTZ under this Agreement. ASL shall have complete discretion and control over such defense and all negotiations for a settlement or compromise, unless it declines to defend or settle, in which case LICENSEE is free to pursue any alternative LICENSEE may have.
LICENSEE shall defend, indemnify and hold ASL harmless from and against any and all claims, losses, liabilities and expenses (including attorney's fees) related to or arising out of the User Content or LICENSEE's use of the Software and Services, including without limitation, claims made by third parties (including LICENSEE's customers) related to any false advertising claims, liability claims for products or services sold by LICENSEE, claims for patent, copyright or trademark infringement, or claims due to disruption or malfunction of Software and Services provided hereunder, except for those related to the negligence of ASL. This provision will survive the termination of this Agreement.
5. Term And Termination. Either party may terminate this Agreement only after completion of the minimum term as specified on the reverse side of this Agreement. ASL may terminate this Agreement at any time, and without notice, upon LICENSEE's breach or violation, whether actual or threatened, of any term of this Agreement.
6. Taxes. LICENSEE is responsible for the payment of all applicable service, sales, and other taxes (other than income taxes payable by ASL) that may be assessed or imposed as a result of LICENSEE's use of the Software and Services provided pursuant to this Agreement. Software sales are FOB destination.
7. Export Restriction. LICENSEE acknowledges that the Software and Services, object code, source code and all related documentation is subject to United States export control laws as well as applicable regulations issued by, among others, the U.S. Departments of Commerce, State and Treasury. LICENSEE will comply with all such laws and regulations.
8. U.S. Government Restricted Rights. The Software and Services, and any associated software or documentation, are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227, as applicable, or the current equivalents of the cited paragraphs. As provided in 48 C.F.R. 227.7202-3, the rights of the Department of Defense regarding its use, reproduction and disclosure are as set forth in this Agreement. Manufacturer is ASL, Inc., 4840 W. 15th Street, Lawrence, Kansas 66049.
9. Audit. ASL reserves the right to periodically monitor LICENSEE's access to the Software and Services at reasonable times and dates to audit for authorized access, number of users and authorized use. LICENSEE agrees to provide ASL with such other information relating to LICENSEE's use of the Software and Services as ASL deems necessary or desirable. LICENSEE agrees to notify ASL if LICENSEE's address, email address or telephone number changes.
10. Miscellaneous Provisions
10.1 Invalid, Illegal or Unenforceable Provisions. In the event that any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, each invalid or unenforceable provision of the Agreement will be treated by the tribunal as modified to the least extent necessary to rectify its invalidity or unenforceability and shall be enforced as so modified, and the remainder of the provisions of this Agreement shall be unimpaired and remain in full force and effect.
10.2 Binding Effect: Assignment. This Agreement and all of the terms, provisions and conditions hereof are binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. ASL may assign any or all of its rights or obligations hereunder in its free, sole and unfettered discretion.
10.3 Governing Law. This Agreement is governed by, and construed in accordance with, the internal laws of the State of Kansas, USA, without regard to its conflict of laws provisions. LICENSEE agrees to submit to the exclusive jurisdiction of and exclusive venue in the state and federal courts of Kansas in connection with any suit or action related to the Software and Services or this Agreement.
10.4 Attorney's Fees. If suit is brought or an attorney retained by ASL to enforce the terms of, collect any monies due under, or collect damages for breach of, this Agreement or any contemporaneously executed agreement related hereto, ASL is entitled to recover, in addition to any other remedy, reimbursement for reasonable attorney fees, court costs and other related expenses incurred in connection therewith.
10.5 Change of Terms and Conditions. Portions of the terms and conditions herein may be governed by posted or distributed guidelines, rules or other terms and conditions. Such guidelines, rules and other terms and conditions are hereby incorporated into this Agreement by reference. In the event of any conflict between such other guidelines, rules and other terms and conditions and this Agreement, this Agreement shall control. Further, ASL reserves the right to change the terms and conditions of this Agreement as needed. Use of our Software and Services by LICENSEE after any such changes constitutes acceptance of those new terms and conditions. If LICENSEE does not agree to the new terms and conditions, LICENSEE may terminate this Agreement in accordance with the provisions of this Agreement.
10.6 Entire Agreement. This Agreement constitutes the entire agreement between LICENSEE and ASL and supersedes all prior or contemporaneous proposals or communications, whether in writing, oral or electronic, with respect to the Software and Services.