End User Software License Agreement

 

PRIOR TO USING THIS SOFTWARE YOU MUST AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE.

 

READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS SOFTWARE.  USING THIS SOFTWARE  INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.

 

1. License

 

            1.1. In this license agreement (License Agreement), you, the purchaser of the license rights granted by this Agreement, are referred to as "Licensee" or "You." In accordance with the terms and conditions of this License Agreement, Bryxen Software, Inc. (Licensor) grants Licensee the nonexclusive license to use the accompanying software (Software) and documentation (Documentation) only in the country where acquired from your supplier (Supplier). In this License Agreement, the Software and Documentation and any copies or modifications are referred to as the "Licensed Product."

 

            1.2. All rights to and in the Licensed Product, including, but not limited to, copyrights and trade secret rights, belong to Licensor and Licensor holds title to each copy of the Software. The Software shall only be used on a single computer at one time. Licensee shall not transfer or distribute the Licensed Product to others, and this Agreement shall automatically terminate in the event of such a transfer or distribution. Licensee shall not copy or modify the Licensed Product, except that Licensee may copy the Software for the sole purpose of backup as long as all copyright and other notices are reproduced and included on the backup copy.

 

            1.3  Licensee’s account and any passwords used for licensee’s site are for your own individual use only.  You are prohibited from sharing your passwords or use of your account with anyone, including but not limited to using your account to benefit third parties that are not members or Licensees of the software program.  Company will be entitled to monitor your password and account.  Company reserves the right to terminate your account, for any cause Company deems is detrimental to Company’s interests, and to disable and deactivate the program remotely, without notice to you.  Company shall be the sole judge of what cause is sufficient to terminate your account.  No refunds will be given for any accounts so terminated. 

You will be responsible for the security of your password (if any).  Company will be entitled to monitor your password and, at its discretion, require you to change it.  If you use a password that Company considers insecure, Company will be entitled to require the password to be changed and/or terminate your account.

You are prohibited from using any services or facilities provided in connection with this site to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited. If you become involved in any violation of system security, Company reserves the right to release your details to system administrators at other sites in order to assist them in resolving security incidents.  Company reserves the right to investigate suspected violations of these Terms of Use.

2. Term

 

This License Agreement is effective until terminated. Licensee may terminate this License Agreement by promptly returning the Licensed Product to Licensor. Licensor may terminate this License Agreement if Licensee breaches any of the terms and conditions. Upon termination of this License Agreement for any reason, Licensee shall return the Licensed Product to Licensor. All provisions of this Agreement relating to disclaimers of warranties, limitation of liability, remedies, or damages, and Licensor's proprietary rights shall survive termination.

 

3. Software Code

 

Licensee shall not reverse compile or otherwise reverse engineer the Software.

 

4. Limited Warranty and Software Use

 

            4.1. Licensor does not warrant that the functions contained in the Licensed Product will meet Licensee's requirements or that the operation of the Software will be uninterrupted or error free. Licensor does warrant that the media on which the Software is furnished will be free from defects in materials and workmanship under normal use for a period of thirty (30) days from the date of delivery (Warranty Period). Any other software and any hardware furnished with or accompanying the Software is not warranted by Licensor. Licensee's exclusive remedy under this limited warranty is the replacement of any defective physical media on which the Software is furnished, as provided below. To receive a replacement for defective media under this limited warranty, return the defective media to Supplier during the Warranty Period, with proof of payment.

 

            4.2. EXCEPT AS PROVIDED ABOVE, THE LICENSED PRODUCT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED PRODUCT IS WITH LICENSEE.

 

THE FUNCTIONALITY OF THIS SOFTWARE IS BASED IN PART ON PERMISSIONS OR USE OF THIRD PARTY COMPANIES AND PROGRAMS. YOU, THE END USER, UNDERSTAND AND AGREE THAT IN THE EVENT THOSE COMPANIES OR PROGRAMS CEASE OPERATIONS, WITHDRAW PERMISSIONS, PROHIBIT USE OF THIS SOFTWARE OR CHANGE THEIR PROGRAMS, THAT THIS SOFTWARE MAY NO LONGER FUNCTION AS ORIGINALLY INTENDED, DESIGNED OR MARKETED. YOU FURTHER UNDERSTAND AND AGREE THAT THOSE CIRCUMSTANCES ARE BEYOND OUR COMPANY'S CONTROL AND OUR COMPANY WILL NOT BE HELD RESPONSIBLE. YOU FURTHER UNDERSTAND AND AGREE SUCH UNFORSEEN EVENTS WILL NOT BE THE BASIS FOR ANY REFUNDS. IF YOU DO NOT AGREE DO NOT USE THIS SOFTWARE.

 

USER AND LICENSEE UNDERSTAND AND ACKNOWLEDGE, THAT THEIR USE OF THE  LICENSED SOFTWARE, AMONG OTHER FUNCTIONS, ADDS TWO (2) NEW GOOGLE LISTINGS TO THE NUMBER ONE (1) AND NUMBER TWO (2) SEARCH ENGINE POSITIONS, IN THE FORM OF AFFILIATE LINKS.  THIS ONLY OCCURS WHEN THE TOOL IS TURNED ON AND ONLY OCCURS WITH FREE USERS. THE LINKS ARE CLEARLY MARKED AND DISTINGUISHABLE FROM STANDARD GOOGLE RESULTS. USER AND LICENSEE, BY THEIR USE OF THE SOFTWARE, EXPRESSLY GIVE THEIR PERMISSION AND ACCEPTANCE FOR THIS FUNCTION OF THE SOFTWARE.

 

USER AND LICENSEE UNDERSTAND AND AGREE THAT COMPANY RESERVES THE RIGHT TO COMPILE STATISTICS AND/OR SEARCH DATA FROM THE FREE/STANDARD VERSION OF THE SOFTWARE BUT

NOT SPECIFIC IDENTIFYING USER DATA.

 

LICENSOR'S SOLE OBLIGATION OR LIABILITY UNDER THIS AGREEMENT IS THE DELIVERY OF FUNCTIONAL SOFTWARE AT THE TIME OF PURCHASE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OR LOSS OF PROFITS OR LOST SAVINGS, ARISING OUT OF USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DAMAGES. 

 

LICENSEE EXPRESSLY UNDERSTANDS AND AGREES THAT LICENSOR HAS NO  OBLIGATION TO MAKE IMPROVEMENTS OR PROVIDE SUPPORT IN ANY MANNER.

 

 

5. Limitation of Liability

 

LICENSOR'S SOLE OBLIGATION OR LIABILITY UNDER THIS AGREEMENT IS THE REPLACEMENT OF DEFECTIVE MEDIA ACCORDING TO THE LIMITED WARRANTY ABOVE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OR LOSS OF PROFITS OR LOST SAVINGS, ARISING OUT OF USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

 

6. General

 

Any software provided to Licensee by Licensor shall not be exported or re-exported in violation of any export provisions of the United States or any other applicable jurisdiction. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void.

 

Any dispute arising under this EULA will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this EULA will be governed by and construed and interpreted in accordance with the laws of the State of Indiana. The arbitration will be held in Indiana. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this EULA. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.

 

The Court of competent jurisdiction, referred to in the arbitration clause above shall be governed pursuant to and interpreted under the laws of the County, State and Country of the Licensor, which is Fort Wayne, Indiana, U.S.A., without regard to conflicts of law provisions, and any dispute arising under this Agreement, not resolvable by arbitration, shall be resolved solely in the Courts of the State and Country of the Licensor, which is Fort Wayne, Indiana,, U.S.A., including the federal courts therein, with each party submitting to the jurisdiction and venue of such court and the Licensee designating itself, as its agent for service of process in any such action.  The Licensee agrees to accept any and all notice or notices, including but not limited to, service of legal documents, process and pleadings, by mail, and hereby waives any jurisdictional or venue defenses otherwise available to it.

 

If for any reason a court of competent jurisdiction finds any provision of this License or portion thereof, to be unenforceable, that provision of the License shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this License shall continue in full force and effect.

 

7.  Government End Users. If you are acquiring the Software on behalf of any unit or agency of the United States Government, the following provisions apply. The Government agrees:

 

            (i) if the Software is supplied to the Department of Defense (DoD), the Software is classified as "Commercial Computer Software" and the Government is acquiring only "restricted rights" in the Software and its documentation as that term is defined in Clause 252.227-7013(c)(1) of the DFARS; and

 

            (ii) if the Software is supplied to any unit or agency of the United States Government other than DoD, the Government's rights in the Software and its documentation will be as defined in Clause 52.227-19(c)(2) of the FAR or, in the case of NASA, in Clause 18-52.227-86(d) of the NASA Supplement to the FAR.

 

In the case of the United States Government or an agency thereof as Licensee, the following additional terms apply: Restricted Computer Software, as defined in the Rights in Data-General clause at Federal Acquisition Regulations 52.227-14; and the following legend, as applicable:

 

RESTRICTED RIGHTS LEGEND

 

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.

 

Licensor Profitable Results Marketing, LLC, Fort Wayne, Indiana

 

LICENSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS. LICENSEE FURTHER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN LICENSEE AND LICENSOR, AND SUPERCEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.

 

 

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