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ORGPLUS DESKTOP SOFTWARE LICENSE AGREEMENT
(APPLICABLE TO ORGPLUS® EXPRESS, ORGPLUS® WEB PLUG-IN, ORGPLUS® READER, ORGPLUS® STANDARD, ORGPLUS® PROFESSIONAL AND ORGPLUS® PREMIUM)
PLEASE READ THE FOLLOWING DESKTOP SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT FORMS A LEGALLY BINDING AGREEMENT BETWEEN YOU, THE INDIVIDUAL OR ENTITY THAT DOWNLOADED OR INSTALLED THE SOFTWARE (“CUSTOMER”) AND INSPERITY BUSINESS SERVICES, L.P. (“INSPERITY”). BY CLICKING THE “I ACCEPT THE TERMS OF THIS LICENSE” BUTTON DURING SOFTWARE INSTALLATION OR BY USING THE SOFTWARE PROVIDED WITH THIS AGREEMENT, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT INSTALL OR USE THE SOFTWARE, AND YOU SHOULD PROMPTLY DESTROY ALL COPIES OF THE SOFTWARE THAT YOU DOWNLOADED OR COPIED.
1. Grant of License. Subject to the terms and conditions of this Agreement, Insperity grants to Customer a non-exclusive license to install the object code version of the software provided with this Agreement (the “Software”), on a single computer, and to use the Software on that computer, to create organizational charts relating to your organization. Customer agrees that it shall not use the Software in any other manner. Customer shall not install the Software on a network server; allow any other computer, terminal or device to access or use the Software; or install or use the Software concurrently on more than one computer except as expressly authorized by the level of license you purchased. Customer shall not copy the Software except to make one copy for backup purposes. Customer shall not sublicense its rights under this Agreement, rent or lease the Software, or give anyone else access to the Software.
2. Maximum Number of Employees Charted Depends Upon License Key. Customer acknowledges that Insperity distributes several versions of the Software and that the version of the Software to which Customer has acquired a license key is intended to allow Customer to access certain features. The OrgPlus Express Software limits the number of boxes that can be added to a single chart. The OrgPlus Professional and OrgPlus Premium Software are each limited to charting the maximum number of employees indicated in Insperity’s price list at the time you purchased the applicable license key. Customer agrees not to use the OrgPlus Professional or OrgPlus Premium Software to chart more than the total maximum number of employees applicable to the particular license key you purchased. Customer agrees that if it uses the OrgPlus Professional or Premium Software to chart more than such total maximum number of employees, (a) Customer will pay to Insperity its then-current license fee for the version of the Software that would permit Customer to chart that number of employees (less the fee already paid pursuant to this Agreement), and (b) if Customer does not pay such additional fee to Insperity within fifteen (15) days of demand, Insperity may terminate your license to use the Software without refunding any license fees.
3. Copyright. Customer acknowledges that Insperity or its licensors own the copyright and all other intellectual property rights relating to the Software, and that no title to the Software or such intellectual property rights is transferred to Customer. Customer will not acquire any rights to the Software except the limited license to use the Software as expressly set forth above, and Insperity and its licensors retain all other rights. Customer agrees not to alter or remove the copyright notice, or any other notices of proprietary rights, that appear on and in the Software. In the event Insperity provides services to Customer, including without limitation support or installation services, all right, title and interest in the work product of the services shall vest exclusively in Insperity.
4. Restrictions; Reverse Engineering; Modification. Customer agrees not to reverse engineer, decompile, or disassemble the Software in whole or in part, or otherwise reconstruct or discover any source code to the Software, or attempt to do so, except and only to the extent that such activity cannot be restricted under applicable law. Customer agrees not to translate or modify the Software in any way or create derivative works of the Software, or attempt to do so. Customer agrees not to use the Software on a service bureau, application service provider, or time sharing basis. Customer shall not use any license key with the Software other than the key provided by Insperity to Customer.
5. Transfer of License. Customer may not assign or transfer its rights or obligations under this Agreement, except that Customer may assign the Agreement to a successor to its business that results from a sale of substantially all of Customer’s assets, merger, or similar transaction, provided that the assignee agrees in writing to be bound by this Agreement and provided that Customer transfers all copies of the Software and related documentation to the third party or destroys any copies not transferred. Insperity may assign or novate this Agreement freely without notice to Customer.
7. Term of License. The license granted by this Agreement shall continue until terminated, as provided in this Agreement. Customer may terminate the license at any time. Insperity may terminate the license (a) if Customer fails to comply with this Agreement, (b) if Customer does not pay the full license fee when that fee is due, or (c) Customer does not pay any additional license fees that may become due pursuant to Section 2 of this Agreement. Customer agrees, upon any termination of the license, to destroy the Software and all copies thereof in any form. If the Agreement is terminated, the sections related to copyright, liability, disclaimer of warranty, and fees shall remain in effect, in addition to other sections that by their terms are intended to survive. Termination shall not result in a return of fees.
8. Limited Warranty on CD. If the Software was delivered to you on a CD, Insperity warrants that the CD will be free of defects in material and workmanship under normal use for 30 days after purchase. During the 30-day period, Customer may return a defective CD to Insperity with proof of purchase, and it will be replaced without charge, unless the disk is damaged by accident or misuse. REPLACEMENT OF A DISK IS CUSTOMER’S SOLE REMEDY PURSUANT TO THIS WARRANTY.
9. DISCLAIMER OF OTHER WARRANTIES. TO THE FULLEST EXTENT ALLOWED BY LAW, EXCEPT AS EXPRESSLY STATED HEREIN, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. INSPERITY, AND ITS LICENSORS AND SUPPLIERS, HEREBY DISCLAIM ALL ADDITIONAL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. INSPERITY DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE WITHOUT ERROR OR INTERRUPTION.
10. Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL INSPERITY (OR ITS AFFILIATES, SUPPLIERS OR LICENSORS) BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR COST OF COVER, WHETHER ALLEGED AS A BREACH OF CONTRACT, TORTIOUS CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION NEGLIGENCE, ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF INSPERITY (OR ITS SUPPLIERS OR LICENSORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL INSPERITY’S (OR ITS LICENSORS OR SUPPLIERS) AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE LICENSE FEES PAID BY CUSTOMER TO INSPERITY DURING THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, AND IF THE SOFTWARE WAS PROVIDED TO CUSTOMER FREE OF CHARGE, IN NO EVENT SHALL SUCH AGGREGATE LIABILITY EXCEED FIVE DOLLARS (US$5.00). IN THE EVENT OF LIABILITY ARISING OUT OF ANY SERVICES, INCLUDING WITHOUT LIMITATION SUPPORT, IN NO EVENT WILL INSPERITY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO INSPERITY FOR THE EFFECTED SERVICES FOR THAT QUARTER. CUSTOMER IS SOLELY RESPONSIBLE FOR BACKING UP ALL DATA ASSOCIATED WITH ITS USE OF THE SOFTWARE, AND INSPERITY (AND ITS LICENSORS AND SUPPLIERS) SHALL NOT BE LIABLE FOR ANY LOST DATA OR ERRORS IN DATA CAUSED BY THE SOFTWARE.
11. Support Agreement. Customer acknowledges that Insperity shall not be obligated to provide support or maintenance related to Customer’s use of the Software. In the event Insperity in its discretion provides support and/or maintenance to the Customer, such support and/or maintenance shall be provided pursuant to Insperity’s then-current current support terms.
12. General Provisions.
a) Severability. In the event any provision of this Agreement is determined to be invalid or unenforceable, that provision shall be enforced to the maximum extent permitted, and the Parties agree that the other provisions of this Agreement shall not be affected and shall continue to be enforced. The Parties agree that this Agreement is the entire agreement between Customer and Insperity relating to its subject matter, and it supersedes any prior agreements, representations, or communications, whether written or oral, relating to that subject matter.
b) Choice of Law and Venue. This Agreement shall be governed by the internal laws of the State of Texas, without respect to its conflicts of law rules. The Parties agree that this Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. The Parties agree that any suit or proceeding arising out of or relating to this Agreement will be brought only in the courts located in Harris County, Texas, and each shall submit to the exclusive personal and subject matter jurisdiction and venue of such courts.
c) Export. Customer acknowledges that United States (including without limitation US Export Administration Regulations) and foreign laws prohibit the export/re-export or transfer of products and technical data of US origin, including software, and Customer agrees not to export or re-export the Software or related technology without the appropriate US and foreign government clearance.
d) Waiver. No term or provision hereof will be considered waived by either Party, and no breach excused by either party, unless such waiver or consent is in writing signed by both Parties. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either Party.
e) Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement which might be due, in whole or in part, directly or indirectly, to any contingency, delay, failure, or cause of, any nature beyond the reasonable control of such party, including, without limitation, fire, explosion, earthquake, storm, flood, strike, war, insurrection, riot, act of God, epidemic, government action, network outage, or acts or failures to act on the part of any third party. In the event of the happening of such a cause, the party whose performance is so affected will give prompt, written notice to the other Party, stating the period of time the same is expected to continue.
f) Notices. Any notice provided for or permitted under this Agreement will be treated as having been given when (a) delivered personally, (b) sent by confirmed telex or telecopy, (c) sent by commercial overnight courier with written verification of receipt, or (d) mailed postage prepaid by certified or registered mail, return receipt requested, to the party to be notified. Notices to Insperity shall be sent to its then-current principal place of business and addressed to the attention of its General Counsel, and notices to Customer shall be sent to Customer’s address appearing in Insperity’s records, or to such other place of which the other party has been notified in accordance with the provisions of this section. Any notices will be treated as having been received upon the earlier of actual receipt or five (5) days after posting.
g) Relationship of Parties. There is no relationship of agency, partnership, joint venture, employment or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf. No other party except Insperity and Customer shall be construed as a third party beneficiary to this Agreement or in privity to enforce the provisions of this Agreement at law or in equity.