PMPLAN SOFTWARE LICENSE AGREEMENT
*IMPORTANT– YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE INSTALLING THIS SOFTWARE. INSTALLING THIS SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS*
SOFTWARE LICENSE AGREEMENT
EFFECTIVE January 1, 2002
AlNik Solutions hereby grants to you, the original end user licensee, a nonexclusive, non-transferable license to use the copy of this Version of PMPlan software (the "Software") and documentation contained in this package, subject to the terms and conditions stated below.
THE USE OF THE SOFTWARE, AND/OR OTHER CONTENT, WHETHER ELECTRONIC OR OTHERWISE (THE "CONTENT"), INCLUDED WITH THIS LICENSE AGREEMENT (COLLECTIVELY, THE "PRODUCT") IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW. BY CLICKING "YES" OR "ACCEPT" TO THIS AGREEMENT, INSTALLING OR USING THE PRODUCT OR ANY PORTION THEREOF, YOU ACCEPT THE TERMS AND CONDITIONS SET FORTH BELOW IN THIS LICENSE AGREEMENT (THE "LICENSE") WITH ALNIK SOLUTIONS, LLC, ITS AFFILIATES AND DISTRIBUTORS (COLLECTIVELY, "ALNIK SOLUTIONS"). IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE, DO NOT DOWNLOAD OR INSTALL THE PRODUCT. IF YOU DID NOT HAVE AN OPPORTUNITY TO VIEW AND ACCEPT THIS LICENSE PRIOR TO PURCHASE, YOU ARE THE ORIGINAL PURCHASER OF THIS PRODUCT ("ORIGINAL LICENSEE") AND YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL THE PRODUCT; RATHER, PROMPTLY RETURN THE PRODUCT, TOGETHER WITH ALL ACCOMPANYING ITEMS, FOR A FULL REFUND. THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCT AND, WITH THE EXCEPTION OF A POSSIBLE NON-DISCLOSURE AGREEMENT, SUPERSEDES ANY PREVIOUS OR CONTEMPORANEOUS WRITTEN OR ORAL AGREEMENT, PURCHASE ORDER, COMMUNICATION, ADVERTISING, OR REPRESENTATION CONCERNING THE PRODUCT.
LIMITED USE LICENSE
Subject to the terms and conditions of this License and to AlNik Solutions’ receipt of any applicable payment, AlNik Solutions grants to you the right to install and operate one (1) copy of the Product. This License, and the restrictions set forth herein, apply to the Software and the Content.
You acknowledge and agree that AlNik Solutions and/or its suppliers own all rights, title and interest in and to the Product and any and all updates, enhancements, additions and/or modifications thereof, and you agree not to claim any ownership interest in any of the foregoing items. AlNik Solutions and/or its suppliers reserve all rights in and to the Product, and any and all subsequent updates, enhancements, additions and/or modifications thereof, not expressly granted by this License. The rights granted pursuant to this License do not constitute a sale, and this License does not authorize a sale of the Software, or Content or anything created thereby. You have only the limited rights granted by this license, and shall not use the Software except as expressly authorized herein. You are not an owner of any copy of the Software, and therefore 17 U.S.C. section 117 does not apply. You must reproduce and include the proprietary rights notices on any copy of the Software and accompanying documentation.
If you fail to comply with any of the terms, conditions and/or covenants set forth in this License, this License and your rights to use the Product will terminate automatically, and you immediately must stop using the Product, remove the Software and Content from your computer and permanently erase and destroy all copies of the Software and Content under your possession or control. You are responsible for any copyright infringement that is caused or encouraged by your failure to abide by the terms of this License.
You acknowledge and agree that due to the unique and valuable nature of the Product, there can be no adequate remedy at law to compensate AlNik Solutions and its suppliers for the breach of any term, condition or covenant of this License; that any such breach would result in irreparable harm to AlNik Solutions and its suppliers that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, AlNik Solutions and its suppliers shall be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages or of posting a bond), in addition to whatever remedies may be available at law.
RESTRICTIONS ON USE
The Software contains AlNik Solutions trade secrets and methodologies, and in order to protect them, you may not:
- Modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works from the Product or any copies thereof, in whole or in part;
- Use the Product or permit use of the Product on more than one (1) computer, computer terminal or workstation at the same time;
- Make copies of the Product or any portion thereof except as expressly authorized herein;
- Sublicense, assign or transfer the license to the Software or accompanying documentation except as expressly provided in this Agreement. Any attempt otherwise to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void;
- Rent, lease, timeshare, license, distribute or otherwise transfer the Product without the express written consent of AlNik Solutions;
- Remove or alter any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels appearing on or in copies of the Product; or
- Incorporate the Product or any portion thereof in any other product or service, or use the Product or any portion thereof for any commercial purposes or any purpose other than for incorporation into projects produced with the Product.
THE PRODUCT IS PROVIDED "AS IS," AND ALNIK SOLUTIONS, LLC, ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PRODUCT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO OTHER OPINION, ADVICE, STATEMENT, ADVERTISING, DESCRIPTION OR REPRESENTATION, WHETHER MADE BY A SUPPLIER, DISTRIBUTOR, AGENT OR EMPLOYEE OF ALNIK SOLUTIONS OR ITS AFFILIATES, SHALL BE BINDING UPON ALNIK SOLUTIONS, OR SHALL CHANGE THE TERMS OF THIS LICENSE. ALNIK SOLUTIONS, ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS DO NOT WARRANT THE ACCURACY, OR COMPLETENESS OF THE PRODUCT OR THAT THE PRODUCT OR THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, AND HEREBY DISCLAIM ANY AND ALL LIABILITY ON ACCOUNT THEREOF. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR THE DOWNLOADING AND/OR INSTALLATION, USE, OPERATION AND MANAGEMENT OF THE PRODUCT, AND YOUR RELIANCE THEREON. THE FOREGOING LIMITATIONS ON WARRANTIES SHALL BE ENFORCEABLE TO THE EXTENT ALLOWED BY APPLICABLE LAW.
LIMITATIONS OF LIABILITY
AlNik Solutions shall not be responsible for any loss or damage to you or any third parties caused by the Software or by AlNik Solutions’ performance of this Agreement. IN NO EVENT SHALL ALNIK SOLUTIONS, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR ANY DIRECT INDIRECT, SPECIAL, INCIDENTAL, CONSQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, LOSS OF BUSINESS, LOSS OF USE OR DATA OR INTERRUPTION OF BUSINESS, WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR PRODUCT PACKAGE OR OTHERWISE ARISING OUT OF THIS LICENSE, WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF THE SOFTWARE OR ANY PERFORMANCE OF THIS AGREEMENT, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF ALNIK SOLUTIONS, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS EXCEED THE ACTUAL PRICE PAID BY THE ORIGINAL LICENSEE FOR THE PRODUCT, IF ANY.
U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND.
If you are acquiring the Software on behalf of any part of the United States Government, the following provisions apply. The Software and accompanying documentation are deemed to be "commercial software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR 12.212(b), as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and/or the accompanying documentation by the U.S. Government or any of its agencies shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. Any technical data provided that is not covered by the above provisions is deemed to be "technical data-commercial items" pursuant to DFAR Section 227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed be the terms of DFAR Section 227.7015(b).
You may not export or re-export the Product or any underlying information or technology except in full compliance with all United States and any other applicable laws and regulations.
This License constitutes the complete and exclusive understanding and agreement between AlNik Solutions and you relating to the subject matter hereof. This License cannot be amended, modified, or waived, unless done so in writing and signed by an Authorized AlNik Solutions representative. This License is governed by the laws of the State of Ohio, exclusive of its choice of law rules (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended).
If any provision of this License is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this License and shall not affect the validity and enforceability of any remaining provisions. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in this License is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
Nothing in this License constitutes a waiver of the rights of AlNik Solutions under the U.S. Copyright Act or any other federal or state law.