IMPORTANT: THE FOLLOWING IS A LICENSE TO USE A SOFTWARE PRODUCT, IT IS NOT A SALE. CAREFULLY READ THE FOLLOWING LICENSE AGREEMENT BEFORE INSTALLING, COPYING, OR USING THIS SOFTWARE. WMPNJ Software, IS WILLING TO LICENSE THE SOFTWARE TO YOU AS THE INDIVIDUAL, THE ORGANIZATIONAL ENTITY, AND/OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SOFTWARE ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT. TO THE EXTENT PERMITTED BY LAW, USING THIS SOFTWARE INDICATES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED IN THIS LICENSE AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE LICENSE AGREEMENT, YOU SHOULD NOT SEEK TO DOWNLOAD, INSTALL, OR USE THIS SOFTWARE.
IMPORTANT: READ THIS LICENSE CAREFULLY BEFORE DOWNLOADING THE SOFTWARE. BY DOWNLOADING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS LICENSE.
IF YOU ARE AGREEING TO THIS LICENSE ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND THE COMPANY TO THE LICENSE. YOU AGREE THAT THIS LICENSE IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU, AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED.
IMPORTANT: IF YOU ARE USING OUR SOFTWARE ON A TRIAL BASIS (I.E. FOR A TRIAL PERIOD), UPON EXPIRATION OF THE TRIAL PERIOD YOU WILL NOT BE ABLE TO USE THE SOFTWARE UNLESS YOU HAVE COMPLETED EXHIBIT B AND PAID THE INITIAL LICENSE FEES DUE.
Software License Agreement
1. This is a contract between you (variously referred to as “you”, “your”, and “organizational entity”) and WMPNJ Software, sometimes referred to as “WMPNJ”, “we”, “us” or “our”. This contract applies to your licensed us of any WMPNJ software, products or services, including updates, you use while this contract is in force. All of such WMPNJ software, products or services are referred to in this contract as “Product”.
Please note: WMPNJ does not provide warranties for the Product, and this contract limits our liability for damages arising out of or in connection with your use of WMPNJ Product(s).
2. You may start using your licensed WMPNJ Product as soon as you have finished the sign-up process and paid the appropriate license fee associated with your selected WMPNJ Product. If you elect to use the Product under a trial period offer, you are licensed to do so on a fee-free basis for the duration of the trial period, only, after which your use of the Product is conditioned upon the payment of a license fee as described herein.
3. In using WMPNJ Products, you agree to:
- obey laws governing use of Products;
- keep use of the Products restricted to the organizational entity by which or for which the Product is licensed;
- manage and maintain your own Product password; and
- promptly notify us if you learn of a security breach related to the service.
4. In using WMPNJ Products, you may not:
- provide access to WMPNJ Products to users outside the organizational entity by which or for which the Product is licensed;
- use the Product in a way that harms us or our affiliates, resellers, distributors, and/or vendors (collectively, the “WMPNJ parties”), or any customer of an WMPNJ party;
- use any portion of the Product as a destination linked from any unsolicited bulk messages or unsolicited commercial messages (“spam”);
- reverse engineer or disassemble the Product code;
- use any unauthorized means to modify or copy any WMPNJ Product code base;
- damage, disable, overburden, or impair WMPNJ Products (or the network(s) connected to the Product) or interfere with other licensee’s use and enjoyment of WMPNJ Products; or
- resell or redistribute the service, or any part of the Product.
5. Only individuals authorized by the licensing organizational entity (up to that maximum number of individual users consistent with license fees you have paid for your license) may use the licensed WMPNJ Products. The use of WMPNJ Products by such authorized individual users is wholly dependent on the licensed account. You are responsible for all activity that takes place with your licensed account, including the activity of all individual users accessing your licensed WMPNJ Product. You may not authorize any third party to access and/or use any WMPNJ Product on your behalf. The licensing organizational entity shall have full control over its account and any data entered, shared, or stored by its authorized individual users of WMPNJ Products, including the right to end the service, close or alter an authorized individual user’s account at any time, to request and receive information related to your associated account.
6.1. This section 6 applies in all situations in which you directly pay us. If you pay a company other than us for use of WMPNJ Products, then the charges and billing terms are as stated by the other company. Even if you do not pay for the use of WMPNJ Products, you may still incur charges incidental to using the Product(s); for example, charges for Internet access, mobile text messaging, or other data transmission.
6.2. When you create a billing account, you enter your payment method. You must be authorized to use the payment method. You authorize us to charge you for the WMPNJ Product(s) using your payment method. You will pay for Product(s) charges in advance. If you choose to pay for Product training, administration, maintenance, support, and/or updates, the fee for such services and/or items is in addition to the fee for the basic Product license contemplated hereby.
6.3. In order to allow us to maintain reasonable contact (including but not limited to notice of updates and renewal of maintenance and support), you must keep WMPNJ updated on all required contact information. You may send us an e-mail with your changes at email@example.com.
6.4. You may have received use of WMPNJ Products without charge for a period of limited duration (a “Trial Period”) or pursuant to some other promotional offer. Unless we notify you otherwise, if you are participating in any trial period or promotional offer, you must notify us of your election to cancel your use of WMPNJ Product(s) by the end of the trial period to avoid incurring charges and a suspension of data privileges. If, at the end of your trial period, you wish to continue to use the Products and access your related data, you must pay the appropriate license fee.
6.5. The price for WMPNJ Products excludes all taxes and phone charges, unless stated otherwise. (Appropriate sales taxes will be charged along with your license fee.) Currency exchange settlements are based on your agreement with your payment method provider. We may change the price to be charged for WMPNJ Maintenance and Support Product(s) from time to time, but we will tell you before we do.
- If your use of WMPNJ Maintenance and Support Product(s) is charged on a periodic basis (e.g. annually), with no specific time duration, then we will tell you the date of any price change. That date will be not less than 30 days after we tell you of the price change.
If you do not agree to these changes, then your right to updates, support, and revisions will be suspended.
6.6. Unless otherwise provided by law, all charges are non-refundable unless stated otherwise and the costs of any returns will be at your expense.
7. Your use of WMPNJ Product(s) does not entitle you to internet access, and WMPNJ is not in anyway obligated to provide or arrange such access for you. You are responsible for obtaining and paying for internet access through other sources of your own choosing, and any fees charged by such providers are separate from and additional to any fees you are obligated to pay WMPNJ for your use of WMPNJ Products.
8.1. Content: It may be that in your (or your organizational entity’s) use of WMPNJ Product(s) information, data, documents, etc., will be submitted for your or other’s use in connection with use of WMPNJ Product(s). Except for Product(s) and material(s) we license to you, we do not claim ownership of the materials you input or otherwise provide to us or others related to your use of WMPNJ Product(s).
8.2. Submission of recommendation, etc.: Should you submit information, recommendation or error report (“submission”) to WMPNJ, you do grant to WMPNJ the right to use such submission in the debugging, correction or revision of WMPNJ Products, and any such use shall be without obligation to in anyway attribute to you or compensate you for such submission. For every submission you make, you must have all rights necessary for you to grant the permissions in this section.
9. Supplements: It is understood that you or someone in your organizational entity may seek to supplement the software code base and/or flex or adjust the application of certain WMPNJ Products (hereinafter jointly referred to as ‘Supplements’), and you understand and agree that any and all such Supplements shall be made available to WMPNJ for its (and its other licensees and/or successors in interest) perpetual unrestricted commercial and non-commercial uses. As well you understand and agree that such Supplements may be made available to third-party users of WMPNJ products, with or without cost, and that you have no right to restrict any such third-party use or claim any fee for any such use. You do not warranty the content, functionality or efficiency of any Supplements, but agree your Supplement will not undermine the efficiency or functionality of WMPNJ Products. You further agree WMPNJ has the right, in its sole discretion, to remove Supplements from any sharing forum or pool of Supplements, without good cause and without explanation to you or third-parties.
10. Privacy: We consider your use of WMPNJ Products to be private. We may, however, access or disclose information about you, your account and/or the content of your communications, in order to: (1) comply with the law or legal process served on us; (2) enforce and investigate potential violations of this contract; including use of this service to participate in, or facilitate, activities that violate the law; or (3) protect the rights, property, or safety of WMPNJ, its employees, its customers or the public. You consent to the access and disclosures outlined in this section.
We may use technology or other means to protect WMPNJ Products, protect our customers, or stop you from breaching this contract. These means may include, for example, determining number of authorized users, filtering to stop spam, or increase security. These means may hinder or break your use of WMPNJ Products.
11. Receipt of Boxed Software: If, apart from any Products you receive via electronic transmission, you receive software Product from WMPNJ as part of the licensed Products, your use of that software Product is subject to the terms of the license presented to you for acceptance along with that software Product. If there is no license presented to you, then we grant you the right to use the software only for the authorized use of the service on that number of computers stated our offer to you associated with that software Product. We reserve all other rights to the software.
We may automatically check your version of all WMPNJ Product software.
Unless we notify you otherwise, your license to use WMPNJ Products will end on the date your right to use WMPNJ Products ends, and you must promptly uninstall any software Products and discontinue use of such. We may disable any software Products after the date your right to use such WMPNJ Product(s) ends.
You will not disassemble, decompile, or reverse engineer any software Product provided to you by WMPNJ, except and only to the extent that the law expressly permits this activity.
WMPNJ Products are the property of WMPNJ, and you are not granted the right to sub-license, share, sell, or export WMPNJ Products.
12. Export Controls. If the Product is identified as a not-for-export Product (for example, on the box, media, or in the installation process), then, unless you have exemption from the United States Department of Commerce or other regulatory authority as designated from time to time, the following applies: Except for export to Canada for use in Canada by Canadian residents, the Product may not be exported outside of the United States or to any foreign entity or ‘foreign person’ as defined by U.S. government regulations, including without limitation, anyone who is not a citizen, national or lawful permanent resident of the United States. By agreeing to the terms of this License you are warranting to WMPNJ not a ‘foreign person’ or under the control of a ‘foreign person’.
13. Changes to this Contract. WMPNJ reserves the right to change this contract. If we change this contract, then we will tell you at least 30 days before the change takes place. If you do not agree to these changes, then you must cancel and stop using the subject WMPNJ Product before the change takes place. If you do not stop using the service, then your use of the service will continue under the changed contract.
14. No Warranty. We provide WMPNJ Products “as-is,” “with all faults” and “as available.” We do not guarantee the accuracy or timeliness of information available through your use of WMPNJ Products. WMPNJ gives no express warranties, guarantees or conditions. You may have additional consumer rights under your local laws that this contract cannot change. We exclude any implied warranties including those of merchantability, fitness for a particular purpose, workmanlike effort and non-infringement.
15. Limitation on Recoverable Damages. You can recover from the WMPNJ only direct damages up to an amount equal to charges you pay WMPNJ for one month’s use of WMPNJ Product(s). You cannot recover any other damages, including consequential, lost profits, special, indirect, incidental or punitive damages.
This limitation applies to anything related to:
- WMPNJ Products,
- content (including code) on third party Internet sites, third party programs or third party conduct,
- viruses or other disabling features that affect your access to or use of WMPNJ Products,
- incompatibility between WMPNJ Products and other Products, services, software and hardware,
- delays or failures you may have in initiating, conducting or completing any transmissions or transactions in connection with WMPNJ Products in an accurate or timely manner, and
- claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort.
It also applies even if:
- this remedy does not fully compensate you for any losses, or fails of its essential purpose; or
- WMPNJ knew or should have known about the possibility of the damages.
This provision is subject to interpretation according to the laws of the State of California.
16. Changes to WMPNJ Products; If Product is No Longer Available. We may change WMPNJ Products or delete features at any time and for any reason. If you are using a hosted WMPNJ Product, once your right to use a hosted Product is cancelled or suspended, any data you have stored on such Product may not be retrieved later; further, our cancellation of the service will not alter your obligation to pay all charges incurred by you for use of the Product prior to the date of cancellation. If we cancel your right to use a hosted Product(s) in its entirety without cause, then we will refund to you on a pro-rata basis the amount of payments that you have made corresponding to the portion of your service remaining up until the date of the cancellation.
17. Contract Interpretation. All parts of this contract apply to the maximum extent permitted by law. A court may hold that we cannot enforce a part of this contract as written. If this happens, then you and we will replace that part with terms that most closely match the intent of the part that we cannot enforce. The rest of this contract will not change. Except as set forth in paragraph 10, hereof, this is the entire contract between you and us regarding your use of WMPNJ Product(s). It supersedes any prior contract or statements regarding your use of the Product(s). If you have confidentiality obligations related to the service, those obligations remain in force (for example, you may have been a test user). Any paragraph headings or titles in this contract do not limit the other terms of this contract.
18. Assignment. We may assign this contract, in whole or in part, at any time with or without notice to you. You may not assign this contract, or any part of it, to any other person. Any attempt by you to do so is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use the service or any part of the service.
19. No Third Party Beneficiaries. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors and assigns under this contract.
20. Limitations Period. Any claim related to this contract or the service may not be brought unless brought within one year. The one-year period begins on the date when the claim first could be filed. If it is not filed, then that claim is permanently barred. This applies to you and your successors. It also applies to us and our successors and assigns.
21. Notice to WMPNJ. You may notify us as stated in the customer support or ‘help’ area for the service. We do not accept e-mail notices.
22. Notices We Send You; Consent Regarding Electronic Information. This contract is in electronic form. We have promised to send you certain information in connection with WMPNJ Product(s) and have the right to send you certain additional information. There may be other information regarding the Product(s) that the law requires us to send you. We may send you this information in electronic form. You have the right to withdraw this consent, but if you do, we may cancel your service. We may provide required information to you:
- by e-mail at the e-mail address you specified when you signed up for your service;
- by access to a WMPNJ web site that will be designated in an e-mail notice sent to you at the time the information is available; or
- by access to a WMPNJ web site that will be generally designated in advance for this purpose.
Notices provided to you via e-mail will be deemed given and received on the transmission date of the e-mail.As long as you can access and use the WMPNJ Product licenses hereby, you have the necessary software and hardware to receive these notices. If you do not consent to receive any notices electronically, you must stop using WMPNJ Products.
23. Contracting Party, Choice of Law and Location for Resolving Disputes.
This contract is between you and WMPNJ, a California corporation, and you agree that any disputes arising out of this contract and/or your use of WMPNJ Products is subject to interpretation according to the law of the State of California, and you do stipulate to bring any suit arising out of such dispute in the Superior Court of the State of California, in and for the County of San Diego.
24. U.S. Government Rights. The Product under this License consists of “Commercial Computer Software” and “Commercial Computer Software Documentation” as those terms are defined in the United State Code of Federal Regulations and Federal Acquisition Regulation. If acquired by or on behalf of a civilian agency, the U.S. Government acquires a license to use this Commercial Computer Software and/or Commercial Computer Software Documentation with restricted rights to use, duplicate or disclose, and is otherwise subject to the terms of this License, as specified in the CFR, FAR, and its/their successors, (see 48 CFR 52.227-19). If acquired by or on behalf of any agency within the Department of Defense, the U.S. government acquires a license to use this Commercial Computer Software and/or Commercial Computer Software Documentation with restricted rights to use, duplicate or disclose, and is otherwise subject to the terms of this License, as specified in the CFR and DFAR, and its their successors, (see DFAR Supplement 52.227.7014).
Notices and Procedure for Making Claims of Copyright Infringement
Under Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to service provider’s designated agent: Kendrick Jan, Attorney, 402 West Broadway, 27th Floor, San Diego, CA 92101
Copyright and Trademark Notices
All contents of WMPNJ Products are Copyright © 2006 – 2012 WMPNJ Software, and/or its suppliers, 9742 Red Pony Lane, El Cajon, CA 92021. All rights reserved. Copyright and other intellectual property laws and treaties protect any software or content provided as part of the Product. We or our suppliers own the title, copyright, and other intellectual property rights in the software or content. WMPNJ Software, Bugs Dashboard, and Products referenced herein may also be either trademarks or registered trademarks of WMPNJ Software in the United States and/or other countries. The names of actual companies and Products mentioned herein may be the trademarks of their respective owners. Any rights not expressly granted herein are reserved. Unpublished rights reserved under the copyright laws of the United States.
Third-Party Copyrighted Materials
Given the nature of certain WMPNJ Products, it may be possible for users to transmit information which is the copyright or patent protected property of a third-party. You should not share intellectual property, written content, or images owned or controlled by third-parties unless you have been granted permission to do so by the owner thereof. WMPNJ is not responsible for the wrongful transmission, dissemination or use of such third-party property. Please respect the rights of inventors, authors, artists and creators.
IMPORTANT: BY DOWNLOADING THE PRODUCT:
- You certify that you are not a minor and that you agree to be bound by all of the terms and conditions set out in this License. Downloading and/or using the Product will be an irrevocable acceptance of the terms and conditions of the License;
- You agree to be responsible for any and all internet service provider fees, telecommunication and other charges that may apply as a result of your download of the Product;
- You represent and warrant to WMPNJ, if you are accepting on behalf of a organizational entity (whether a partnership, corporation, limited liability company, or otherwise), that you have full authority to bind such entity; and
- All risk of damage to the Product during transmission and download is assumed by you.