User
License Agreement (“Agreement”)
Redistribution or Rental Not Permitted
BY
ORDERING, VIEWING OR RECEIVING INFORMATION ABOUT ANY OF
CYBERSPORTS, INC.’S PRODUCTS YOU ARE CONSENTING TO BE
BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.
THIS USER LICENSE AGREEMENT GOVERNS YOUR USE OF THE
SOFTWARE.
1.
DEFINITIONS.
a.
"CyberSports" shall refer to CyberSports, Inc. located
at 12 Juniper Lane, New Hartford, New York 13413
("Licensor").
b.
"Licensee" shall mean the people who shall view
information, participate in a demonstration, or run the
Software at the institution which employs such persons.
c.
"Software" shall refer to the demonstration containing
the information on CyberSports’ products: “CyberWeb”,
"THE RECRUITER", "THE RECRUITER 2000", "THE CAMPER", “CyberMail”,
“CyberMobile” or any other software products offered by
CyberSports, Inc.
2.
LICENSE
GRANT.
Upon the terms and conditions set forth herein,
Licensor hereby grants to You, Licensee, and You hereby
accept from Licensor a nontransferrable, nonexclusive
license to use the accompanying proprietary software
product ("Software") and related documentation
("Documentation") according to the provisions contained
herein. Unless you have purchased the Software, the
license granted under this Agreement does not grant you
any right to any enhancement or update to the Software
or development based on its features.
You may view
any information on only ONE computer and may view or run
the software solely for the purpose of deciding
whether to purchase the Software for use with
Licensee's athlete recruiting process or camps.
3.
LIMITATIONS.
You, as Licensee, may not:
a.
permit
other individuals, including contractors or employees
who may be developing software for the university, to
view or use the Software and/or Documentation
or information provided about Disclosing parties
software;
b.
modify, translate, reverse engineer, decompile,
disassemble, or create derivative works based on the
Software;
c.
copy
the Software, or its user interface, or the
Documentation;
d.
rent,
lease, grant a security interest in, or otherwise
transfer rights to the Software and/or Documentation; or
e.
remove
any proprietary notices or labels on the Software and/or
Documentation.
4.
NO FURTHER
RIGHTS.
Any further rights granted to Licensee for use of the
Software are with the purchase of the Software for use
with Licensee's athlete recruiting process.
5.
TITLE.
Title, ownership rights, and intellectual property
rights in the Software shall remain in CyberSports, Inc.
as Licensor.
6.
TERM AND
TERMINATION.
The
license granted under this Agreement shall be in effect
for ninety (90) days from the Effective Date. Licensor
may, upon five (5) days written notice, inspect any and
all Licensee computers which have, or had, Software
installed to confirm non-use. Licensee agrees to
provide access to both the physical premises and
computers for the purpose of confirming non-use under
this provision.
In the
event that Licensee files or has filed against it any
bankruptcy, reorganization, or insolvency proceedings or
makes an assignment for the benefit of creditors, this
Agreement and the license granted by it may be
terminated immediately by Licensor by written notice
delivered by Licensor to Licensee.
Upon Licensee's violation
of any confidentiality obligation hereunder, Licensor
may terminate this Agreement and all licenses granted
hereunder immediately by written notice delivered to
Licensee.
Upon termination of this
Agreement for any reason, Licensee shall, within ten
(10) days, return to Licensor all copies of the Software
and Documentation and other information (including all
whole or partial copies thereof), in whatever form,
regarding or relating to the Software which is in
Licensee's possession or control, or in the possession
or control of any party who may have been afforded
access by Licensee to the Software, and shall promptly
make full payment to Licensor of all amounts due.
Termination of this Agreement shall automatically
terminate all licenses granted hereunder.
The rights, obligations,
liability, and limitations of liability of Licensor and
Licensee under the following Sections of this Agreement
(except as may be expressly provided therein) shall not
be affected by, and shall survive, the termination or
expiration of this Agreement.
7.
OWNERSHIP AND CONFIDENTIALITY.
Licensee acknowledges
and agrees that the Software is, and shall remain, both
during and after this Agreement, the sole and exclusive
and confidential property of Licensor or one or more
third parties from whom Licensor has acquired software
licensing rights. Licensee agrees to act consistently
with such claims, and to take no action and assert no
claim that is contrary to or would be in conflict with
any such claims by Licensor. No title or other
ownership interest in any of the Software, or any whole
or partial copy thereof, shall transfer to or vest in
Licensee. Any copies or all or part of any of the
Software and any modifications or improvements of any
Software made by Licensee shall be and remain the
property of Licensor. Licensor may register its
copyright in the Software, but such act shall not cause
or be construed to cause the Software to cease to be
confidential and proprietary to Licensor.
Licensee agrees to
preserve the confidential and trade secret status of the
Software. Except as specifically provided for herein,
Licensee shall not reproduce or duplicate any of the
Software, and shall not reveal, publish, transfer,
disclose, disseminate or distribute the Software to
anyone other than those of its employees who have a
"need to know" in the ordinary course and scope of their
employment. Licensee shall not make any
telecommunication or transmission of the Software, nor
shall Licensee merge, modify, reverse compile,
disassemble or reverse engineer the Software without the
express written consent of an authorized officer of
Licensor. Further, Licensee shall not use any of the
Software to develop a system or software similar in
function to the Software.
Licensee agrees that any
violation of the provisions of this Section shall cause
irreparable harm to Licensor. Accordingly, in
additional to any other remedies available to Licensor
under contract law or equity, Licensor shall be entitled
to injunctive relief in the event of such a breach (or
an explicit threat thereof), including a temporary
restraining order, without any requirements to post bond
therefor.
Licensee will promptly notify Licensor in the event that
Licensee becomes aware of any unauthorized person
obtaining access to any of the Software and will
identify such unauthorized person for Licensor.
8.
NO
WARRANTY. Licensor does not warrant that the operation of the
Software will be uninterrupted or error-free, or that
the Software functions will meet Licensee's
individualized requirements. Licensor shall, as its
exclusive remedy for any nonconformity in the Software,
repair or replace (at its option) the Software.
There is no warranty to cover repair for damages,
malfunctions, or service failures caused by (1) actions
of any non-Licensor personnel, (2) failure to follow
Licensor’s installation, operation, or maintenance
instructions, (3) attachment to or incorporation in the
Software non-Licensor products not supported by
Licensor, or (4) any factor beyond Licensor’s control,
including fire, explosion, lightning, pest damage, power
surges or failures, strikes or labor disputes, water,
acts of God, the elements, war, civil disturbances, acts
of civil or military authorities or the public enemy,
transportation facilities, fuel or energy shortages, or
acts or omissions of communications carriers.
EXCEPT AS STATED IN THIS SECTION, LICENSOR AND ITS
AFFILIATES, SUBCONTRACTORS, AND REPRESENTATIVES
MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AND
SPECIFICALLY DISCLAIM OTHER WARRANTIES WITH REGARD
TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
LICENSEE AGREES THAT ITS SOLE REMEDY AGAINST
LICENSOR, ITS AFFILIATES, SUBCONTRACTORS, AND
REPRESENTATIVES FOR LOSS OR DAMAGE CAUSED BY ANY
DEFECT OR FAILURE OF THE SOFTWARE, REGARDLESS OF
THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT
INCLUDING NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE, SHALL BE AS PROVIDED IN THIS SECTION
10.
9.
LIMITATIONS ON LIABILITY
IN
NO EVENT SHALL LICENSOR BE LIABLE FOR
INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL
DAMAGES, OR FOR LOST PROFITS, SAVINGS, OR
REVENUES OF ANY KIND, OR FOR LOST DATA OR
DOWNTIME, REGARDLESS OF WHETHER LICENSOR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE
CUMULATIVE LIABILITY OF LICENSOR TO LICENSEE FOR
ALL CLAIMS RELATING TO THE SOFTWARE OR THIS
LICENSE AGREEMENT, REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING
NEGLIGENCE STRICT LIABILITY, OR OTHERWISE, SHALL
NOT EXCEED THE TOTAL AMOUNT OF ALL LICENSE FEES
PAID TO LICENSOR DURING THE PREVIOUS TWELVE
MONTHS.
10.
NOTICE.
All notices under this Agreement shall be given as
follows:
If to the Licensor, to:
CyberSports, Inc.
Attn: Candice Hobin
12
Juniper Lane
New
Hartford, New York 13413
If to the Licensee, to:
__________________________
__________________________
__________________________
__________________________
11.
INDEMNIFICATION.
Licensee shall release, defend, indemnify, protect, and
hold harmless the Licensor, its officers, agents, and
employees, from any and all claims, losses, liabilities,
causes of action, demands, judgments, decrees,
proceedings, and expenses of any nature, including,
without limitation, attorneys’ fees, arising out of or
resulting from the acts or omissions by Licensor.
12.
MISCELLANEOUS
a.
This Agreement shall inure to the benefit of, and be
binding on, Licensee and Licensor, and their respective
successors and assigns. Licensee may not assign this
Agreement except with the prior written consent of
Licensor.
b.
This Agreement sets forth the entire understanding
between the parties with respect to the Software and
supersedes all prior written agreements, discussions and
understandings, express or implied, concerning the
Software. The terms of this Agreement shall supersede
any contrary terms of any purchase order issued by
Licensee. No addition to or modification of any
provision of this Agreement shall be binding upon
Licensor or Licensee unless made in writing and signed
by an officer of such party.
c.
If any provision of this Agreement is determined by any
court of competent jurisdiction to be invalid, the
provision shall be deemed deleted and the remainder of
this Agreement shall not be affected.
d.
This License Agreement and the rights and obligations of
the parties with respect to the Software shall be
governed by New York law, as it applies to a contract
negotiated, executed, and performed in that state.
e.
This Agreement is solely for the benefit of the parties
hereto and is not intended and shall not be construed to
confer benefits upon any third parties.
IN
WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date set forth below.
Name: _____________________________________________________
Title:_________________________________
Date (“Effective
Date”):____________________
Click here: PRINTABLE .PDF OF THIS AGREEMENT
(MUST BE FAXED TO 315-737-7194 PRIOR TO DEMO--AFTER
SUBMITTING THIS ONLINE REQUEST)
I accept these terms.
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