The Forté Institute
APPLICATION SERVICE AND SOFTWARE LICENSE AGREEMENT GRANT OF LICENSE.
GRANT OF LICENSE. Licensor hereby grants to the Licensee and Licensee hereby accepts
from Licensor a private, nontransferable and nonexclusive license to possess, maintain
and operate on a Licensor constructed Internet site the computer software and documentation
system (the “System”) consisting of those programs and items (the “Licensed Programs”)
owned and used by Licensor.
Licensee acknowledges that Licensor has developed the System as a comprehensive
application software system. Licensee may not modify any portion of the Licensed
Programs and software and may not merge the same into other program material to
form an updated work.
Licensee acknowledges that all software or application services provided to Licensee
pursuant to this license are copy protected, and Licensee may not copy or attempt
to copy, in whole or in part, any part of or any Licensed Program, or any copy thereof,
including all database files, or cause any part of the program to be made available
to any third party without the prior written consent of Licensor. Licensee shall
take reasonable steps, consistent with steps taken to protect its own proprietary
or confidential information, to prevent the unauthorized copying or use of any of
the Licensed Programs, listings or other material provided under this Agreement.
The System, and all programs, databases and materials contained therein, shall remain
the exclusive property of Licensor.
WARRANTY OF PERFORMANCE. Licensor warrants to Licensee that for a period of twelve
months from the date of initialization and/or delivery of the System, the System,
if operated in accordance with Licensor’s instructions and system requirements,
will perform substantially in accordance with the documentation provided in connection
with the Licensed Programs." Any performance that does not conform to the previous
sentence during this twelve month period and is reproducible by Licensor shall be
corrected at Licensor’s expense, or, in the sole discretion of Licensor or its distributors,
as applicable, a replacement product or pro-rated refund will be provided.. This
warranty applies only to the Licensed Programs as delivered to Licensee. This warranty
shall only apply if Licensee has installed any and all updates, patches or bug fixes
provided to Licensee by Licensor. This warranty shall not apply to any Licensed
Program that is modified or altered, is not maintained to Licensor's maintenance
recommendations, is operated in a manner other than specified by Licensor, is altered
or is treated with abuse, negligence or other improper treatment (including, without
limitation, use outside of the recommended environment).
RESTRICTIONS ON USE. Licensor retains all title to and ownership in the System and
each Licensed Program and shall have the exclusive right to protect the same by
copyright or otherwise, and to reproduce, publish, sell and distribute the same.
Licensee acknowledges and agrees that the System and/or the Licensed Programs are
confidential and proprietary to Licensor and are Licensor’s trade secrets. Licensee
acknowledges and agrees that it will not, directly or indirectly, sell, give away,
communicate or disclose, in any way, to any person, firm or entity, other than persons
gainfully employed by Licensee, their spouses or significant others, or bona fide
applicants for employment at Licensee’s facility, any part or the whole of the software
and/or the Licensed Programs; and, further, Licensee agrees that it will use its
best efforts to protect the software and/or the Licensed Programs from any publication,
communication or disclosure to any person, firm or entity not expressly authorized
by Licensor to receive such information.
The parties acknowledge that a breach of this Agreement by Licensee would cause
irreparable harm to Licensor and subject Licensor to damages difficult or impossible
to ascertain and, therefore, Licensor shall be entitled to injunctive and other
equitable remedies, in addition to any other remedies which may be available upon
the breach or threatened or anticipated breach of this Agreement by Licensee.
LICENSEE’S INDEMNIFICATIONS. Licensee hereby indemnifies and agrees to hold Licensor
harmless from any and all liabilities, losses, damages, expenses, causes of action,
suits, claims or judgments, legal or otherwise, arising from injury, loss, or loss
of income to any person, property or business, resulting from or based upon the
actual or alleged use, possession, management, control or operation of the System
or any Licensed Program by Licensee, its employees or agents. Licensee shall, at
its own cost and expense, defend any and all suits or other actions which may be
brought against Licensor, either alone or in conjunction with others, upon any such
claim or claims, and shall satisfy, pay and discharge all judgments, costs, fines,
liens or levies that may be recovered or ordered against Licensor in any such suits
or other actions.
TERM AND TERMINATION. This license shall remain in force for a period of twelve
(12) months from the date of purchase and is automatically renewed for additional
twelve (12) month terms unless terminated by Licensee at any time after the initial
twelve (12) month term upon written notice to Licensor. Notwithstanding the foregoing,
Licensor may discontinue or terminate this license or any part hereof, at any time,
upon written notice to Licensee, if Licensee fails to comply with any of the terms
and conditions hereof. No refund of any portion of the license fee shall be made
upon any discontinuance or termination of any part of this Agreement.
The obligations of Licensee shall survive any termination of this Agreement, unless
otherwise agreed to in writing by Licensor. All Forté materials shall be returned
to The Forté Institute, Inc. upon termination.
GENERAL PROVISIONS. This Agreement has been entered into and shall be construed
and enforced in accordance with the laws of the State of Missouri, United States
Neither this Agreement nor any interest herein may be assigned by Licensee, in whole
or in part, without the prior written consent of the Licensor, nor may any interest
in or use of the System or any Licensed Program be transferred or made available
to any person or entity or any location.
This instrument sets forth the entire agreement of the parties with respect to the
subject matter hereof, and may be modified only by a writing signed by the parties
DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY. LICENSOR MAKES NO WARRANTIES
WITH RESPECT TO THE LICENSED PROGRAMS, APPLICATION SERVICES, OR INTERNET DELIVERABILITY
WHICH ARE PROVIDED ON AN “AS IS” BASIS. THE FOREGOING IS IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL LICENSOR BE LIABLE FOR CONSEQUENTIAL
OR INCIDENTAL DAMAGES EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. WITH RESPECT TO DISTRIBUTORS OF LICENSED PROGRAMS, EXCEPT FOR SUCH DISTRIBUTORS'
DUTIES TO HANDLE AND BE RESPONSIBLE FOR WARRANTY RETURNS, SUCH DISTRIBUTORS SHALL
HAVE NO LIABILITY FOR WARRANTY CLAIMS.
LIMITATION OF REMEDY. THE PARTIES RECOGNIZE AND AGREE THAT IT IS DIFFICULT TO ASCERTAIN
ANY DAMAGES WHICH MAY BE INCURRED BY LICENSEE UPON THE FAILURE OF LICENSOR TO PROVIDE
THE SERVICE AND/OR PROGRAMS DESCRIBED HEREIN. THEREFORE, LICENSEE AGREES THAT ITS
SOLE AND EXCLUSIVE REMEDY UNDER ANY CONTRACT, NEGLIGENCE OR OTHER CLAIM OF LIABILITY
SHALL BE THE RETURN OF ANY MONEYS PAID TO LICENSOR IN EXCHANGE FOR THE RETURN TO
LICENSOR OF THE LICENSED PROGRAMS AND ALL COPIES THEREOF. IN NO EVENT WILL LICENSOR
BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES EVEN IF LICENSOR HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
ACCEPTANCE OF LICENSE. USER’S/LICENSEE’S USE OF FORTÉ ONLINE CONFIRMS ACCEPTANCE
AND AGREEMENT TO ALL TERMS OF THIS APPLICATION SERVICE AND SOFTWARE LICENSE AGREEMENT.
The Forté Institute, LLC
141 Middle Oaks Drive
Wilmington, NC 28409