THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SOFTWARE BETWEEN YOU AND POLAR ENGINEERING AND CONSULTING. (REFERRED TO AS "LICENSOR"), AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
1. License Grant. Licensor hereby grants to you, and you accept, a nonexclusive license to use the WinWrap® Basic v10 computer programs contained therein in machine-readable, object code form only (collectively referred to as the "Software"), and the accompanying User Documentation, only as authorized in this License Agreement. You are authorized to relicense specific portions of the Licensor's Software (defined in attachment 1) to end users if and only if fees are paid to the Licensor according to the terms of section 3 of this agreement. All licensees must agree to include in the "about box" and in any printed or online documentation for their product the following information: This product uses WinWrap® Basic, Copyright 1993-2010 Polar Engineering and Consulting, http://www.winwrap.com/. You agree that you will not assign, sublicense, transfer, pledge, lease, rent, or share your rights under this License Agreement, except that you may transfer these rights in connection with sale of the entirety of any product that utilizes WinWrap® Basic v10, together with its goodwill. Except as authorized under this paragraph, no copies of the Software or any portions thereof may be made by you or any person under your authority or control.
2. Licensor's Rights. You acknowledge and agree that the Licensor's Software and the User's Manual are proprietary products protected under U.S. copyright law. You further acknowledge and agree that all right, title, and interest in and to the Licensor's Software, including associated intellectual property rights, are and shall remain with Licensor. This License Agreement does not convey to you an interest in or to the Licensor's Software, but only a limited right of use revocable in accordance with the terms of this License Agreement. All rights not expressly granted under this agreement are reserved by the licensor of the Licensor's Software.
3. License Fee. The license fees are due annually and calculated based on the WinWrap® Basic v10 certificates (defined in attachment 2) used by the Licensee's products. The first payment due within thirty days of ordering the first WinWrap® Basic v10 certificate. The licensee's annual license fee date is the order date for the first WinWrap® Basic v10 certificate. Interest of 1% per month shall accrue on overdue balances. Licensee must not ship or otherwise distribute Licensor's Software without fully paid WinWrap® Basic v10 certificates. Fees subject to change with 12 months notice. Fees set at the prevailing rate for new customers.
4. Term. You may terminate this License Agreement at any time by returning the Licensor's Software and all your copies thereof and extracts therefrom to Licensor. Licensor may terminate this License Agreement upon the breach by you of any term hereof. Upon such termination by Licensor, you agree to terminate your distribution of Licensor's Software to others.
5. Updates. Licensor shall provide updates of the Licensor's Software from time to time during the term of this license.
6. Limited Warranties. Licensor warrants, for your benefit alone, for a period of 90 days from the date of commencement of this License Agreement (referred to as the "Warranty Period") that the Licensor's Software setup file is free from defects in material and workmanship. Licensor further warrants, for your benefit alone, that during the Warranty Period the Licensor's Software shall operate substantially in accordance with the functional specifications in the User's Manual. If during the Warranty Period, a defect in the setup file appears, you may return the setup file to Licensor for either replacement or, if so elected by Licensor, refund of amounts paid by you under this License Agreement. You agree that the foregoing constitutes your sole and exclusive remedy for breach by Licensor of any warranties made under this Agreement. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE THE SOFTWARE CONTAINED THEREIN, ARE LICENSED "AS IS," AND LICENSOR DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU, THE LICENSEE, ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY OF PERFORMANCE WITH RESPECT TO THE SOFTWARE AND THE SOFTWARE CONTAINED THEREIN, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT.
7. Limitation of Liability. LICENSOR'S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE LICENSE FEE PAID TO LICENSOR FOR THE USE OF THE SOFTWARE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS), EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8. Trademark. WINWRAP, and the associated Design Mark are trademarks of Licensor. No right, license, or interest to such trademarks is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to such trademarks.
9. Notice to Federal Government Customers. The Licensor's Software is commercial computer software under Federal Acquisition regulations, and is provided only under the Restricted Rights of the Federal Acquisition Regulations applicable to commercial computer software provided at private expense. The use, duplication, or disclosure by the Government is subject to restrictions set forth in subdivision (c)(i)(ii) of the Rights in Technical Data and Computer Software clause at 252.227-7013.
10. Governing Law. This License Agreement shall be construed and governed in accordance with the laws of the State of Alaska.
11. Costs of Litigation. If any action is brought by either party to this License Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation.
12. Entire Agreement. This License Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior agreements, representations, or understandings, whether oral or written, relating to the Licensor's Software.
13. Severability. Should any term of this License Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
14. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
The relicensable portion of WinWrap® Basic v10 is:
ww10_32a.dll, ww10_32w.dll, ww10_c32.ocx, setup32u.msi, ww10_64.dll, ww10_c64.ocx, setup64u.msi, ww10_net.dll, ww10_v90.chm, ww10_v90.cnt, ww10_v90.hlp, ww10_com.chm, ww10_com.cnt, ww10_com.hlp, ww10_000.chm, ww10_000.cnt, ww10_000.hlp, ww10@000.dll, ww10@chs.dll, ww10@cht.dll, ww10@deu.dll, ww10@esp.dll, ww10@fra.dll, ww10@ita.dll, ww10@jpn.dll, ww10@kor.dll, ww10@nor.dll, ww10@ptb.dll, ww10@rus.dll, ww10@sve.dll, ww10$000.dll, ww10$chs.dll, ww10$cht.dll, ww10$deu.dll, ww10$esp.dll, ww10$fra.dll, ww10$ita.dll, ww10$jpn.dll, ww10$kor.dll, ww10$nor.dll, ww10$ptb.dll, ww10$rus.dll, ww10$sve.dll
These files may be relicensed in accordance with the terms of section 1 and certificate restrictions.
WinWrap® Basic v10 certificates are used to authorize compilation and distribution of Licensor's Software. Licensee must have at least one fully paid up Development certificate to authorize compilation and distribution of Software. Licensee must have one fully paid up Application (or Server) certificate for compilation and distribution of each application/server that utilizes the Software. Any certificate which is distributed must be fully paid up. Any certificate used during the development of Licensee's software or distributed by Licensee must be fully paid up.