Application Service and Software License Agreement Grant of License
The Forté Institute
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 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.
This Agreement has been entered into and shall be construed and enforced in accordance with the laws of the State of Missouri, United States of America. 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 hereto.
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.