This is a legal agreement ("Agreement") between you (either an individual or an entity), the end user ("Recipient"), and Cold-Forged Software Corporation ("Cold-Forged Software"). BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, COPY OR USE THE SOFTWARE.
1. GRANT OF LICENSE. This Agreement grants Recipient the following rights provided that Recipient complies with all terms and conditions of this Agreement:
(a) Cold-Forged Software grants to Recipient a limited, non-exclusive, nontransferable, worldwide, fully paid-up, royalty-free license to install, reproduce, and use one (1) copy of the Software on computers residing on Recipient's premises, solely for purposes of developing and testing prerelease versions of computer software applications that run in conjunction with the Software, and to evaluate the Software for the purpose of providing feedback thereon to Cold-Forged Software. Recipient may not commercially release applications based on this Software.
(b) All other rights are reserved to Cold-Forged Software.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS:
(a) Recipient shall not rent, lease, lend, sell, sublicense, assign, or otherwise transfer any portion of the Software.
(b) Recipient may not reverse engineer, decompile or disassemble or otherwise seek to discover the source code, components, codecs, digital rights management, format or other protocols associated with the Software (other than the sample source code), except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(c) Recipient agrees to provide to Cold-Forged Software reasonable suggestions, comments and feedback regarding the Software, including but not limited to usability, bug reports and test results, with respect to Software testing (collectively, "Feedback"). Recipient grants Cold-Forged Software, under all of Recipient's intellectual property and proprietary rights, the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights:
(i)to make, use, copy, modify, and create derivative works of, the Feedback as part of any Cold-Forged Software product, technology, service, specification or other documentation (individually and collectively, "Cold-Forged Software Works");
(ii)to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Cold-Forged Software Work;
(iii)solely with respect to Recipient's copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties; and
(iv) to sublicense to third parties any claims of any patents owned or licensable by Recipient that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with the Feedback or portion thereof incorporated into a Cold-Forged Software product, technology or service. Further, Recipient warrants that Recipient's Feedback is not subject to any license terms that would purport to require Cold-Forged Software to comply with any additional obligations with respect to any Cold-Forged Software Works that incorporate any Feedback. Due to the nature of the development work, Cold-Forged Software provides no assurance that any specific errors or discrepancies in the Software will be corrected.
(d) In the event Cold-Forged Software, in its sole discretion, elects to provide deliveries of Software to more than one individual employed by Recipient (if Recipient is not a single individual), each such recipient shall be entitled to exercise the rights granted in this Agreement, and shall be bound by the terms and conditions herein.
3. TERM OF AGREEMENT. The term of this Agreement shall commence on the date accepted by Recipient and shall continue until terminated by Cold-Forged Software in writing at any time, with or without cause. This Agreement will terminate without notice upon the earlier of (i) commercial release of the Software or (ii) one hundred eighty (180) days after the last date Recipient receives the Software or any Update thereto, unless terminated earlier by Cold-Forged Software. Upon the termination of this Agreement (or upon request by Cold-Forged Software), Recipient shall promptly return to Cold-Forged Software, or certify destruction of, all full or partial copies of the Software provided by Cold-Forged Software. The following Sections shall survive termination or expiration of this Agreement: Sections 2(b), 8, 9, 10 and 11.
4. SOFTWARE MAINTENANCE/UPDATES. Cold-Forged Software is not obligated to provide maintenance, technical support or updates to Recipient for the Software provided to Recipient pursuant to this Agreement. However, Cold-Forged Software may, in its sole discretion, provide further versions, technical support, updates and/or supplements of the Software and/or related information ("Updates") to Recipient hereunder, in which case such Updates shall also be deemed to be included in the "Software" and therefore governed by this Agreement, unless other terms of use are provided by Cold-Forged Software with such Updates.
5. INTELLECTUAL PROPERTY RIGHTS. All title and intellectual property rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text and "applets" incorporated into the Software and any features incorporated into the Hardware), and any copies of the Software that Recipient is expressly permitted to make herein, are owned by Cold-Forged Software or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Software are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants Recipient no rights to use such content. If the Software contains documentation which is provided only in electronic form, Recipient may print one copy of such electronic documentation. Recipient may not copy the printed materials accompanying the Software. All rights not expressly granted are reserved by Cold-Forged Software.
6. DISCLAIMER OF WARRANTIES. THE SOFTWARE IS DEEMED ACCEPTED BY RECIPIENT. THE SOFTWARE CONTAINS PRE-RELEASE SOFTWARE AND/OR PRE-RELEASE HARDWARE AND MAY BE CHANGED SUBSTANTIALLY BEFORE COMMERCIAL RELEASE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Cold-Forged Software AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND ANY (IF ANY) SUPPORT SERVICES RELATED TO THE SOFTWARE ("SUPPORT SERVICES") AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM WITH RESPECT TO THE SOFTWARE AND SUPPORT SERVICES ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES, DUTIES OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT AND LACK OF NEGLIGENCE. ALSO, THERE IS NO WARRANTY, DUTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY, OR ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND ANY SUPPORT SERVICES, REMAINS WITH RECIPIENT.
7. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Cold-Forged Software OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE OR SUPPORT SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF Cold-Forged Software OR ANY SUPPLIER, AND EVEN IF Cold-Forged Software OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT RECIPIENT MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF Cold-Forged Software AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND RECIPIENT'S EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO ACTUAL DAMAGES INCURRED BY YOU BASED ON REASONABLE RELIANCE UP TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY RECIPIENT FOR THE SOFTWARE OR FIVE DOLLARS (US$5.00). THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS 8 AND 9 ABOVE) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
9. GOVERNING LAW/JURISDICTION/ATTORNEYS' FEES. This Agreement shall be construed and controlled by the laws of the State of North Carolina, and Recipient consents to exclusive jurisdiction and venue in the federal courts sitting in Forsyth county, North Carolina, unless no federal jurisdiction exists, in which case Recipient consents to exclusive jurisdiction and venue in the Superior Court of Forsyth county, North Carolina. Recipient waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. In any action to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs and other expenses.
11. EXPORT RESTRICTIONS. Recipient acknowledges that Product is of U.S. origin. Recipient agrees to comply with all applicable international and national laws that apply to the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
12. ENTIRE AGREEMENT. This Agreement constitutes the complete and exclusive agreement between Cold-Forged Software and Recipient with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein. This Agreement may not be amended except in a writing duly signed by an authorized representative of Cold-Forged Software and Recipient.
