PLEASE READ THIS LICENSED PROGRAM END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING SOFTWARE FROM SHARPR. BY DOWNLOADING OR USINGSHARPR SOFTWARE, YOU SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF THIS END USER LICENSE AGREEMENT AND ACKNOWLEDGE YOU HAVE READ AND UNDERSTAND THE TERMS. AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO ENTER INTO THIS END USER LICENSE AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE THESHARPR SOFTWARE. EXCEPT AS SET FORTH HEREIN, THIS END USER LICENSE AGREEMENT DOES NOT PROVIDE ANY RIGHTS TO SHARPR SERVICES SUCH AS ADDITIONAL SOFTWARE, CONSULTING SERVICES, MAINTENANCE, UPGRADES OR SUPPORT EXCEPT AS SET FORTH HEREIN. USING THE SOFTWARE ACCOMPANYING THIS LICENSE INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. READ ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT PRIOR TO INSTALLING OR USING THE SOFTWARE. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST DELETE THE SOFTWARE FROM YOUR HARDWARE.
1. License. Subject to the terms of the Statement of Work as agreed upon by the parties hereto (“SOW”), Sharpr Corporation (“Licensor”) hereby licenses (the “License”) its Information Curation Licensed Platform (the “Licensed Program”) and the accompanying documentation, services, features and documentation (the “Documentation”) to you. The term “Licensed Program” shall also include any updates of the Licensed Program licensed to you by Licensor. Subject to the terms of this agreement and the SOW, you have a non-exclusive and nontransferable right to use the Licensed Program for its own uses and not for commercial purposes (e.g., not for resale or rental or the like). You agree to use your best efforts to prevent and protect the contents of the Licensed Program and Documentation from unauthorized disclosure or use. Licensor and its licensors reserve all rights not expressly granted to you. Licensor’s licensors are the intended third party beneficiaries of this agreement and have the express right to rely upon and directly enforce the terms set forth herein.
2. Limitation on Use: You may not assign, transfer, rent, lease, sublicense, sell or otherwise transfer or distribute copies of the Licensed Program or Documentation to others. You may not modify or translate the Licensed Program or the Documentation without the prior written consent of Licensor. You may not reverse assemble, reverse compile or otherwise attempt to create the source code from the Licensed Program. You may not release the results of any performance or functional evaluation of any Licensed Program to any third party without prior written approval of Licensor for each such release. You may make copies of the Licensed Program in executable code form as necessary for your use and for backup or archive purposes. You agree to maintain records of the location and use of each copy, in whole or in part, of the Licensed Programs. Each Licensed Program is copyrighted and you agree to reproduce and apply the copyright notice and proprietary notice of Licensor to all copies made hereunder, in whole or in part and in any form, of Licensed Programs.
3. Transfer. You may not sublicense, assign, delegate, rent, lease, time-share or otherwise transfer this License or any of the related rights or obligations for any reason. Any attempt to make any such sublicense, assignment, delegation or other transfer by you shall be void.
4. Copyright and Ownership. The Licensed Program and related Documentation are copyrighted by Licensor and its licensors. You agree that the Licensed Program and Documentation belong to Licensor and its licensors. You agree that you neither own nor hereby acquire any claim or right of ownership to the Licensed Program and Documentation or to any related patents, copyrights, trademarks or other intellectual property. Licensor and its licensors retain all right, title and interest in and to the Documentation and all copies and the Licensed Program at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. This License is not a sale of the original or any subsequent copy. All content accessed through the Licensed Program is the property of the applicable content owner and may be protected by applicable copyright law. This License gives you no rights to such content. Licensor retains all rights in and to the Licensed Programs not expressly granted in this Agreement.
6. Service and Support. Upon request, Licensor will provide technical support, technical maintenance, correction of technical errors and bugs, consultation, training, and other general consulting Services related to the Licensed Programs (together with the Customer Programming (as defined below), the “Services”). All Services shall be described as set forth in the SOW. If you notify Licensor of a program error respecting the Licensed Programs, or Licensor has reason to believe that error exists in the Licensed Program, Licensor shall at its expense verify and attempt to correct such error within thirty (30) working days after the date of notification. If you are not satisfied with the correction, then you may immediately upon notice terminate this Agreement.
7. Custom Programming. Upon request, Licensor shall provide such custom programming as set forth on the SOW (“Custom Programming”). All rights, title and interest in the Custom Programming as well all intellectual property rights therein or with respect thereto, are and shall be owned by Licensor and licensed to you. For purposes of this Agreement and the Application, the Licensed Programs and the License granted by Licensor shall include all Custom Programming developed pursuant to this Agreement.
8. Fees. In consideration for the License granted pursuant to this Agreement, you agree to pay Licensor a monthly License fee (“License Fee”) in the amount set forth in the SOW. Unless otherwise stated in the SOW, all payments shall be made quarterly in advance. In addition to the License Fee, in connection with the Services or any Custom Programming, you shall pay such service fees (“Service Fees”) as set forth in the SOW. Unless as set forth in the SOW, all Service Fees shall be paid to Licensor within 45 days of invoicing.
9. Term and Termination. This License is effective until terminated by you or Licensor or in accordance with the SOW. This License automatically terminates if you fail to comply with its terms and conditions or the terms and conditions of the SOW. You agree that, upon such termination, you will either destroy all copies of the Licensed Program and Documentation, or return the original Licensed Program and Documentation to Licensor, together with any other material you have received from Licensor in connection with the Licensed Program and immediately cease further use of the Licensed Programs.
10. Third Party Content. The Licensed Program may display, include, or make available content, data, information, applications or materials from third parties (“Third Party Material”). You acknowledge and agree that Licensor is not responsible for examining or evaluating content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Material or web sites. Licensor does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third party Materials.
11. No Warranty: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED PROGRAM IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED PROGRAM AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED PROGRAM (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLICATION PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED PROGRAM AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLICATION PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED PROGRAM, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY LICENSOR WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED PROGRAM OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED PROGRAM OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLICATION PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED PROGRAM OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
12. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL APPLICATION PROVIDER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED PROGRAM, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF APPLICATION PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Application Provider’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of the License Fees and Service Fees paid by you.
13. The Licensed Program and related Documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
14. Miscellaneous. This Agreement and the License granted hereunder will be governed by the laws of the State of Utah, without reference to conflicts of laws principles. This Agreement and the SOW constitute the entire agreement between the parties with respect to the Licensed Program and the Documentation, and supersedes any other written or oral agreement. The relationships established by this Agreement are non-exclusive; each party retains the right to enter into similar agreements with other parties. You may not assign or transfer your rights or obligations under this Agreement without the prior written consent of Licensor. The failure of either Licensor to enforce at any time any of the provisions hereof or exercise any right or option hereunder shall not be construed to be a waiver of the right of such party thereafter to enforce any such provisions or exercise such right or option. Any consent by any Licensor to, or waiver of, a breach by the other, shall not constitute consent to, waiver of, or excuse of any other different or subsequent breach.