IMAGINETIME, INC. SOFTWARE LICENSE SUBSCRIPTION AGREEMENT
PART A: APPLICABLE TO ALL NEW SUBSCRIBERS AND PURCHASERS OF IMAGINETIME, INC. SOFTWARE VERSION 17 AND SUBSEQUENT VERSIONS. FOR EXISTING PURCHASERS AND SUPPORT SERVICE SUBSCRIBERS PRIOR TO VERSION 17: THIS PART A DOES NOT APPLY TO YOU. PLEASE SEE PART B FOR THE LICENSE AND SUPPORT AGREEMENTS APPLICABLE TO YOU.
This Agreement is a subscription contract for services setting forth the terms and conditions of the license to use ImagineTime Software as defined below. Additional terms and restrictions as to use of the Software by Licensee are contained in the respective ImagineTime, Inc. (hereinafter “ImagineTime”) End-User License Subscription Agreement(s) and are incorporated herein by reference. It is understood that this Agreement shall have been executed by a person having the legal capacity to bind the firm and its partners, associates, shareholders or members. This Agreement is terminable by either Party pursuant to the terms contained herein and, unless otherwise terminated consistent herewith, shall automatically renew from month to month (if a monthly subscription) or from year to year (if an annual subscription).
SOFTWARE: The term “Software” shall mean any computer software or electronic files provided by ImagineTime to Licensee under the terms of this Agreement.
LICENSEE: The term “Licensee” shall mean the individual customer or customer firm to whom is granted the License(s) under the terms of this Agreement.
CONTACT PERSON: The term “Contact Person” shall mean the person designated by the Licensee, if another, to receive all notices or other information regarding or affecting the License(s) or the Software. Licensee agrees to provide to ImagineTime with the name, address, telephone number and email address of said Contact Person and any changes thereto.
PAYMENT TERMS AND TERMINATION: This subscription contract for services is payable by means of a Subscription Fee, which fee shall be chargeable and accrue on or about the same business day of each month (if a monthly subscription) or each year (if an annual subscription) until termination of this Agreement by ImagineTime or until Licensee notifies ImagineTime of, and ImagineTime receives, notice of termination by Licensee in writing. Payment of Subscription Fees shall be made automatically by means of a charge by ImagineTime against Licensee’s bank debit or credit card account, and Licensee agrees to keep said account current and in good standing such that charges against same may be collected; and further, to provide ImagineTime promptly of any change in account number, date of expiration or any other information necessary to ensure uninterrupted processing of said payment. ImagineTime is not obligated to prorate or to refund any accrued Subscription Fees. Subscription Fees are due and payable to ImagineTime at its offices in Rutherfordton, North Carolina, in advance and without demand (hereinafter “Due Date”). Any Subscription Fees that are due and payable to, and not received by, ImagineTime by the Due Date shall be considered delinquent. ImagineTime retains the right to, and shall, terminate Licensee’s access to the Software in the event that Licensee is delinquent as defined above. AN ACTIVE SUBSCRIPTION IS REQUIRED IN ORDER TO USE THE SOFTWARE OR TO OBTAIN TECHNICAL SUPPORT, INCLUDING, BUT NOT LIMITED TO, ACTIVATION, RE-ACTIVATION, REGISTRATION, RE-REGISTRATION AND AUTHORIZED TRANSFER BY LICENSEE OF THE SOFTWARE TO ANOTHER USER, AND TERMINATION OF LICENSEE’S SUBSCRIPTION FOR ANY REASON SHALL FORTHWITH SERVE TO DENY ACCESS TO THE SOFTWARE AND THESE SERVICES AS AFORESAID. Program updates are provided free of charge to all ImagineTime Licensees having an active technical support services account.
UPDATES: Except as otherwise provided in this Agreement, while this Agreement is in effect, ImagineTime shall provide Licensee with all applicable updates and upgrades for the Software at no additional charge. ImagineTime reserves the right to provide updates and upgrades via Internet download or other medium to be determined at the sole discretion of ImagineTime. Current updates and upgrades shall not be made available to a Licensee who is delinquent as defined above.
ADDITIONAL SERVICES: ImagineTime provides training materials accessible within the Software and online at www.imaginetime.com. ImagineTime offers unlimited, toll-free customer support relative to the Software at no additional charge to current subscribers. ImagineTime reserves the right to change, add or remove items from the list of Additional Services, whether free or chargeable, or to charge a fee for any Additional Service prior to its delivery and to deny the Additional Service to any Licensee for any reason in the sole discretion of ImagineTime. These and other services may be offered to Licensee by mail, electronic mail, text messaging, telephone, facsimile, by means of the ImagineTime web site or by any other method, at the sole discretion of ImagineTime.
GRANT OF LICENSE: ImagineTime grants to Licensee such number of licenses to use the Software as to which Licensee shall subscribe. Licenses may be used on a computer network and/or individual stand-alone computers. One license is required for each authorized user. For purposes of “thin client” applications, e.g., Microsoft Terminal Services, Microsoft Remote Desktop Services, Citrix XenApp, et al., a license shall be required for each client that accesses the Software. Additional licenses may be added to Licensee’s Subscription Fee. In the event that Subscription Fee payments are not received as provided for in this Agreement, ImagineTime may revoke the Grant of License in this Agreement without further notice to Licensee.
LIMITED WARRANTY: THIS SOFTWARE IS PROVIDED “AS IS,” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IMAGINETIME DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AGAINST INFRINGEMENT, WITH REGARD TO THE SOFTWARE. THE ENTIRE RISK RELATED TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS ON THE LICENSEE. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. In the event ImagineTime fails to remedy material defects in the Software, Licensee’s exclusive remedy shall be, at ImagineTime’s option, either (a) to receive a refund not to exceed the license fee paid hereunder for the current term of the Agreement, or (b) to correct the Software at ImagineTime’s sole expense.
NO LIABILITY FOR DAMAGES: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL IMAGINETIME BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE, EVEN IF IMAGINETIME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.
GENERAL: In the event the terms of this Agreement conflict with any other representations, either express or implied, made by any person or contained within any materials supplied by ImagineTime, the provisions of this Agreement shall prevail. All prices and terms are subject to change and ImagineTime reserves the right to increase Licensee’s Subscription Fee rate upon written notice to Licensee given not less than sixty (60) days prior to the effective date thereof. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable then the provision shall be severed, and the other provisions shall remain in full force and effect. Venue for any cause of action arising under or in connection with this Agreement shall be Rutherford County, North Carolina, for state law matters and the Western District of North Carolina, for federal law matters. Licensee’s acceptance of this Agreement constitutes express written consent for ImagineTime to send information to Licensee or Licensee’s designee for any purpose via facsimile transmission or by text messaging to any wireless device number that Licensee or Licensee’s designee provides to ImagineTime, and constitutes express written consent for ImagineTime to contact Licensee or Licensee’s designee via telephone or electronic mail, or via any wireless telephone number that Licensee or Licensee’s designee provides to ImagineTime. Failure by ImagineTime to exercise any of its rights under this Agreement shall not be construed as to waive ImagineTime’s ability to exercise such rights thereafter.
IMAGINETIME END USER LICENSE AGREEMENT
BY CLICKING “I AGREE” OR BY DOWNLOADING OR OTHERWISE USING THE SOFTWARE OR SERVICES, SUBSCRIBER CONSENTS TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF SUBSCRIBER DOES NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, SUBSCRIBER SHALL IMMEDIATELY STOP USING THE SERVICES AND / OR SOFTWARE.
ImagineTime may modify the terms of this Agreement from time to time and shall post the most current version at www.imaginetime.com; it is Subscriber’s responsibility to monitor and stay informed of any changes that Subscriber’s continued use of the Services following modification of this Agreement shall constitute and Subscriber herewith consents to be bound by the modified Agreement.
“Account” means the account located upon the Infrastructure, created and maintained by Subscriber in order to access the Services.
“Device” means Apple®, Windows® or non- Windows servers, workstations, computers or any mobile devices upon which or through which the Services are used and/or installed.
“Infrastructure” means the technical systems, hardware and all connected devices of ImagineTime or its third Party suppliers.
“Order” means the agreement to subscribe to Services as between Subscriber and ImagineTime.
“Services” means the various services and components thereof, the Software, any documentation both on- and offline, as well as any modifications, derivatives, updates or upgrades as may be offered by ImagineTime from time to time, and which are subscribed to by the Subscriber via a Subscription. A Subscriber may choose to subscribe to one or more Services under his or her Subscription as may be offered by ImagineTime from time to time.
“Software” means any downloadable client software which is provided solely for the purpose of accessing the Services, including ImagineTime Software.
“Subscriber” means an individual or entity (including, but not limited to, that entity’s firm, company, partners, associates, employees, agents and servants) to which Services are provided by and as agreed to by ImagineTime.
“Subscription” means the non-exclusive, non-transferable right to use the Services as ordered by Subscriber, subject to the terms of this Agreement and the full and timely payment of the Subscription Fees.
“Subscription Fees” means the fees payable in respect of an Order.
- SUBSCRIPTION: Subject to the terms and conditions of this Agreement, Subscriber may use the Services only in accordance with any written communication by ImagineTime to Subscriber, including any then-current product documentation as posted on www.imaginetime.com from time to time. ImagineTime shall make commercially reasonable efforts to provide the Services to Subscriber. This Agreement applies to the Subscriber who uses the Services or that installs, otherwise uses or permits the installation of the Software on one or more Devices as owned, operated or overseen by Subscriber to facilitate the provision of services as provided to Subscriber by ImagineTime. Throughout the Subscription Period, unless terminated in accordance with the terms herein, ImagineTime grants Subscriber the following rights only if Subscriber complies with all of the terms of this Agreement.
The Subscription begins at the time the Subscriber’s Subscription is activated by ImagineTime (other than on a trial basis) and thereafter continues in effect until the date of termination as set forth hereinafter. A Subscription may terminate in whole or in part due to (i) Subscriber’s cancellation or (ii) breach of any of terms of this Agreement including non-payment of any Fees when due or (iii) at ImagineTime’s sole discretion.
Subscription Fees are non-refundable if Subscriber cancels or if the Subscription is terminated for cause. As of the effective date of cancellation or termination Subscriber shall no longer be able and shall have no further right to access or use the particular Services which have been canceled or terminated. All licenses granted hereunder shall be month-to-month (or year-to-year, for annual subscriptions) licenses and shall self-renew and self-extend from month to month (or year to year, for annual subscriptions) unless and until Subscriber notifies ImagineTime in writing or via email actually received by ImagineTime of Subscriber’s intent to cancel.
Subscription fees shall be chargeable and accrue on or about the same business day of each month (for monthly subscriptions) or year (for annual subscriptions) until cancellation of this Agreement by either Party. Payment of Subscription Fees shall be made automatically by means of a charge by ImagineTime against Subscriber’s bank debit or credit card account, and Subscriber agrees to keep said account current and in good standing such that charges against same may be collected; and further, to provide ImagineTime promptly of any change in account number, date of expiration or any other information necessary to ensure uninterrupted processing of said payment. ImagineTime is not obligated to prorate or to refund any accrued Subscription Fees. Subscription Fees are due and payable to ImagineTime at its offices in Rutherfordton, North Carolina, in advance and without demand (hereinafter “Due Date”). Any Subscription Fees that are due and payable to, and not received by, ImagineTime by the Due Date shall be considered delinquent. ImagineTime retains the right to, and shall, terminate Subscriber’s access to the Software in the event that Subscriber is delinquent as defined above. AN ACTIVE SUBSCRIPTION IS REQUIRED IN ORDER TO USE THE SOFTWARE OR TO OBTAIN TECHNICAL SUPPORT, INCLUDING, BUT NOT LIMITED TO, ACTIVATION, RE-ACTIVATION, REGISTRATION OR RE-REGISTRATION AND AUTHORIZED TRANSFER BY SUBSCRIBER OF THE SOFTWARE TO ANOTHER USER, AND TERMINATION OF SUBSCRIBER’S SUBSCRIPTION FOR SERVICES FOR ANY REASON SHALL FORTHWITH SERVE TO DENY ACCESS TO THE SOFTWARE AND THESE SERVICES AS AFORESAID.
- GRANT OF RIGHT OF USE: The Software is licensed and not sold. During a Subscription Period and subject to the due payment by Subscriber and receipt by ImagineTime of all due and payable Subscription Fees, ImagineTime grants Subscriber a revocable, limited, non-transferable, non-exclusive license to access ImagineTime’s Software and use the Service pursuant to the terms of this Agreement. This Agreement covers any updates, new releases or enhancement(s) of the Services, which ImagineTime may make available to Subscriber from time to time.
Subscriber is solely responsible for access to, content in, or sharing and use of its Account. ImagineTime shall not be liable for any loss or damage arising from any access to, content in, or sharing and use of Subscriber’s Account. In the event that Subscriber believes or suspects there has been any unauthorized access to the Account, Subscriber must notify ImagineTime immediately.
- SUPPORT: During a Subscription Period, ImagineTime will provide Subscriber with the support described in this paragraph (hereinafter “Support”) on a local office’s business hours basis which shall ordinarily be from 9 AM through 6 PM ET, Monday through Friday. In ImagineTime‘s sole determination, Support shall consist of: (i) telephone or electronic support to Subscriber in order to help Subscriber locate and, on Subscriber’s own, correct problems with the Services and/or (ii) supplying extensions, enhancements and other changes that ImagineTime may make to the Services from time to time and which are made publicly available, without additional charge, to other Subscribers of the Services that are entitled to Support.
- SUBSCRIBER’S CONDUCT; CONTENT OF DATA: Subscriber must comply at all times with any and all applicable local, state, federal and international laws and treaties. Subscriber warrants that it has obtained sufficient consent and rights (i) to access any third Party’s or End User’s systems or networks, and (ii) to access, use and store all data and files on the Infrastructure or otherwise use via the Services such data and files. Subscriber acknowledges that ImagineTime has no knowledge of, and is in no way responsible for, any of the content of Subscriber’s data or files.
- DATA PROTECTION: Each Party shall comply with its respective obligations under applicable data protection laws. Neither Party shall do any act that puts the other Party in breach of its obligations as per this Section, nor shall anything in this Agreement be deemed to prevent any Party from taking any action it reasonably deems necessary to comply with data protection laws. Subscriber agrees that during the course of this Agreement: (i) with respect to data Subscriber collects, accesses or otherwise uses, Subscriber alone shall determine the purposes for which and the manner in which such data are, or will be, processed; and (ii) Subscriber is the data controller with respect to all such data Subscriber may process. ImagineTime shall at all times be in accordance with the requirements of data protection laws and Subscriber shall fully indemnify and hold ImagineTime harmless as against any loss, damages, liability and costs (including attorney’s fees) incurred by ImagineTime as a result of any breach of data protection laws by Subscriber.
ImagineTime shall comply with requests for information from legitimate judicial, legal or regulatory authorities or pursuant to any court order or subpoena, discovery request or other lawful process that ImagineTime may receive. ImagineTime may comply with these subpoenas or court orders with or without notice to Subscriber.
- RESTRICTIONS: Except as otherwise expressly provided under this Agreement, Subscriber shall have no right and Subscriber shall not permit any third Party to: (i) harm, disrupt or otherwise engage in activity that diminishes the ImagineTime brand, Services, or Infrastructure; (ii) use the Services in a manner that shall result in excessive bandwidth or storage or shall exceed the Permitted Usage as solely determined by ImagineTime; (iii) transfer, assign or sublicense the limited rights granted to Subscriber in this Agreement to any other person or entity, or use the Services other than as authorized, and any such attempted transfer, assignment, sublicense or unauthorized use shall be void; (iv) make error corrections to or otherwise modify or adapt the Services or decompile, decrypt, disassemble, reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Services or of any files contained or generated using the Services by any means whatsoever or otherwise reduce the Services to human-readable form, except to the minimum extent expressly permitted under applicable law notwithstanding this restriction; or (v) attempt to alter, circumvent or provide the method or means to circumvent any disabling mechanism in the Services; or (vi) use the Services in any manner not expressly authorized herein; or (vii) alter, remove or fail to reproduce any proprietary notices from the Services; or (viii) misrepresent any person or entity’s identity, impersonate any person or attempt to gain access to any Account, the Infrastructure or the networks or property of any third person, without authorization.
- SERVICE UPDATES: ImagineTime agrees to provide to Subscriber from time to time such software updates as it deems necessary and appropriate in order to provide the most optimal Services to Subscriber. Such updates shall be provided to Subscriber at no additional charge.
- INTELLECTUAL PROPERTY RIGHTS: The Services are protected by world-wide copyright, trademark, patent and other intellectual property laws and treaties and belong to ImagineTime, its licensors and any applicable ImagineTime agent and third-Party contractor. Subscriber acknowledges (i) that rights in the Services are licensed and not sold to Subscriber; (ii) that Subscriber shall have no rights or title in or to the Services other than the right to use them in accordance with the terms of this Agreement; and (iii) that Open Source and/or third-Party software may be incorporated into the Services provided by ImagineTime. ImagineTime, its licensors and any applicable third Parties, own all title, copyright and other intellectual property rights in and to the Services. The Services, in all formats existing, are a trade secret of and proprietary to ImagineTime, its suppliers and/or licensors, including but not limited to, the specific internal code, design and structure of individual programs and software, the display and associated interface information. Subscriber shall not disclose the confidential aspects of the Services to unauthorized third Parties.
- THIRD PARTY COMPONENTS: Part of the Services may incorporate third Party proprietary services and/or software. If and to the extent such third Party services and/or software are an integral part of the Services, such third Parties shall be deemed ImagineTime Agents and the terms of this Agreement shall apply to such ImagineTime Agents. If and to the extent Subscriber contracts independently with independent third Parties, the terms of such third Party contract shall apply to the relationship between Subscriber and such independent contractor and ImagineTime shall have no liability with respect thereto. In addition, part of the Services may incorporate and consist of third Party open source software (hereinafter “Open Source”), which Subscriber may use under the terms and conditions of the specific license under which the Open Source software is distributed. Subscriber agrees that Subscriber will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s). Any Open Source software provided with or contained in the Services is provided AS IS and without any warranty of any kind.
- SERVICE EVALUATIONS AND FREEWARE: With ImagineTime‘s consent Subscriber may evaluate the Services for up to fourteen (14) days at no cost. Subscriber may evaluate the Services only to determine whether to license the Services. Subscriber may only evaluate the Services once. At the end of the evaluation period, Subscriber must either license the Services or cease all use of such Services. Subscriber’s use of the Services during an evaluation period or for any Service that is offered as freeware shall be without warranty of any kind and is provided AS IS. ImagineTime has no duty to provide support to Subscriber during any evaluation period or for any Service offered as freeware but may do so at its sole discretion.
- DISCLAIMER OF WARRANTIES: THE SERVICES ARE PROVIDED TO SUBSCRIBER ON AN AS IS AND ON AN AS IS AVAILABLE BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS WARRANTY AND THE REMEDIES HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMIEDIES, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WARRANTIES FOR LATENT OR HIDDEN DEFECTS. IMAGINETIME DOES NOT WARRANT THAT THE SPECIFICATIONS OR FUNCTIONS CONTAINED IN THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. FURTHERMORE, IMAGINETIME DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES PROVIDED WITH RESPECT TO CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. IF THIS EXCLUSION IS NOT PERMITTED BY LAW, IMAGINETIME LIMITS ANY EXPRESS, STATUTORY OR IMPLIED WARRANTIES AS TO DURATION TO THE EXTENT OF THIS LIMITED WARRANTY AND THE REPAIR OR REPLACEMENT REMEDY AS DETERMINED BY IMAGINETIME IN ITS SOLE DISCRETION.
- LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL IMAGINETIME OR IMAGINETIME’S AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, UNDER ANY THEORY OF LAW OR FAULT OF IMAGINETIME OR ANY OF IMAGINETIME’S AGENTS, AND EVEN IF IMAGINETIME OR ANY OF IMAGINETIME’S AGENTS SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL NOT APPLY TO DEATH OR PERSONAL INJURY CLAIMS. IMAGINETIME EXCLUDES ANY LIABILITY FOR FAILURE TO REPAIR ANY SERVICES. NOTWITHSTANDING THE FOREGOING, THE MAXIMUM LIABILITY THAT IMAGINETIME SHALL INCUR HEREUNDER SHALL BE LIMITED TO THE ACTUAL PRICE PAID BY SUBSCRIBER FOR THE RESPECTIVE SERVICE FOR THE ONE MONTH PERIOD EMBRACING THE DATE WHEN THE APPLICABLE CLAIM AROSE.
- INDEMNIFICATION: Subscriber agrees to indemnify, defend and hold ImagineTime and ImagineTime’s Agents harmless from and against any and all damages, fines, penalties, assessments, liabilities, losses, costs and expenses (including attorney’s fees, expert fees and out-of-pocket expenses) in connection with (i) Subscriber’s use of the Services, (ii) Subscriber’s violation of the terms of this Agreement, (iii) Subscriber’s violation of any third-Party rights, including any intellectual property rights, (iv) Subscriber’s misuse or fraudulent use of credit and debit cards, (v) any claims that the Services or any Party thereof were exported or otherwise shipped or transported by Subscriber in violation of applicable laws, rules and regulations, or (vi) any claim of misuse of the Services, including, but not limited to, any claim that Subscriber is storing illegal files or data in Subscriber’s Account.
- EFFECT OF TERMINATION: Without prejudice to any other rights, ImagineTime may suspend or terminate, in part or in whole, without notice, Subscriber’s use of the Services and this Agreement if Subscriber does not abide by its terms, or in ImagineTime’s sole discretion in which case Subscriber must cease all use of the Services. Sections 6, 7, 8, 10, 11, 13, 14, 15, 17, 18, 19 and 20 shall survive any termination of this Agreement.
- GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable then the provision shall be severed, and the other provisions shall remain in full force and effect. Venue for any cause of action arising under or in connection with this Agreement shall be Rutherford County, North Carolina, for state law matters and the Western District of North Carolina, for federal law matters.
- TAXES: Any sales, use, value added or other taxes (including applicable withholding taxes), shall be borne by the Subscriber. Accordingly, Subscriber shall pay or, if paid by ImagineTime, shall reimburse ImagineTime for all such taxes based on this License or any fees payable hereunder (but not any taxes based upon ImagineTime’s revenues or income), together with any interest and penalties on such taxes if not due to ImagineTime’s delay.
- EQUITABLE RELIEF: The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof (without any requirement to post bond or guarantee), in addition to any other remedy to which they are entitled at law or in equity.
- MISCELLANEOUS: The delay or failure of ImagineTime to exercise any right provided in this Agreement shall not be deemed a waiver of that right. This Agreement may not be amended by Subscriber, but ImagineTime may amend this Agreement from time to time and shall post any amended Agreement on its website at www.imaginetime.com. This Agreement constitutes the entire understanding between the Parties with respect to the subject matter of this Agreement and supersedes all written and oral prior agreements, negotiations and discussions between the Parties relating to it. This Agreement is for the sole benefit of ImagineTime and Subscriber and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. If any provision of this Agreement shall be held to be illegal, void or unenforceable by any court of competent jurisdiction or by arbitral tribunal, such provision shall be of no force and effect and shall not impair the enforceability of any other provision of this Agreement and the Parties agree that the relevant provision shall be deemed replaced by such provision which is binding and enforceable and which differs as little as possible from the non-binding and/or non-enforceable provision, taking into effect the object and purpose of this Agreement. The remedies of the Parties under this Agreement are cumulative and will not exclude any other remedies to which the respective Party may be lawfully entitled. All notices must be in writing and shall be mailed by registered or certified mail (effective on the third day following the date of mailing), or sent via email to [email protected] (with evidence of effective transmission). All notices must be addressed to Customer Service Dept., ImagineTime, Inc., P.O. Box 667, Rutherfordton, NC 28139. Subscriber may not assign, pledge or otherwise transfer this Agreement, or any rights or obligations hereunder in whole or in part to any other entity. Paragraph headings are for convenience and shall have no effect on interpretation. Third-Party software shall be exclusively subject to the terms and conditions between the Third-Party software provider and Third-Party software Customer. ImagineTime shall have no liability for Third-Party software.
PART B: APPLICABLE TO ALL EXISTING PURCHASERS AND SUPPORT SERVICE SUBSCRIBERS PRIOR TO VERSION 17. FOR NEW SUBSCRIBERS AND PURCHASERS OF IMAGINETIME, INC. SOFTWARE VERSION 17 AND SUBSEQUENT VERSIONS: THIS PART B DOES NOT APPLY TO YOU. PLEASE SEE PART A FOR THE LICENSE AND SUPPORT AGREEMENTS APPLICABLE TO YOU.
Multi-User and Single-User License for Single Site Use
ImagineTime, Inc. (THE "LICENSOR") IS WILLING TO GRANT A LICENSE TO USE THE ENCLOSED SOFTWARE, KNOWN AS "ImagineTime Software" (THE "SOFTWARE") TO THE INDIVIDUAL OR BUSINESS/NON-PROFIT ORGANIZATION (OPERATING AS A CORPORATION OR LIMITED LIABILITY COMPANY OR NON-U.S. EQUIVALENT) THAT PURCHASES SUCH LICENSE (THE “LICENSEE”)ONLY IF LICENSEE ACCEPTS ALL OF THE TERMS IN THIS LICENSE AGREEMENT (THE “AGREEMENT”). LICENSEE ACKNOWLEDGES THAT THE SOFTWARE IS FOR USE ONLY AND IS NOT OFFERED FOR FINAL SALE, NOR IS ANY COPY SOLD TO LICENSEE.
BY INSTALLING THIS SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THESE TERMS, LICENSOR WILL NOT LICENSE THIS SOFTWARE TO LICENSEE, AND LICENSEE SHALL DELETE ANY COPIES OF THE DOWNLOADED SOFTWARE AND UNINSTALL THE SOFTWARE FROM ALL COMPUTERS AND PROVIDE EMAIL CONFIRMATION OF THESE ACTS BEFORE RECEIVING A FULL REFUND.
THESE TERMS AND CONDITIONS CONSTITUTE THE ENTIRE LEGAL AGREEMENT BETWEEN LICENSEE AND LICENSOR CONCERNING THE SOFTWARE AND THE ACCOMPANYING USER DOCUMENTATION (THE "DOCUMENTATION").
- GRANT OF SITE LICENSE. Licensor grants Licensee a non-exclusive, non-sublicensable, and non-transferable (except as permitted under Section 2 herein) license to install and use the Software in accordance with the terms and conditions of this Agreement and any additional terms and conditions set forth in Addendum A. Licensee shall install the Software’s accompanying data file (the “Software Data File”) at no more than one, single geographic location, which location must be under Licensee’s ownership or control (a “Site”). Examples of a Site are a single facility of a corporation or enterprise or government agency. The one-Site limitation for Software Data File installation applies to each Licensee, regardless of the number of eligible users such Licensee’s purchase encompasses. SINGLE USER LICENSE: The single-user Software may be installed at a single Site and used on a single computer, only, and shall not be installed on any network server. MULTI-USER LICENSE: The multi-user Software may be installed on multiple computers or on a network server for use by employees of Licensee at multiple terminals; provided however, that the multi-user Software shall not be used at any one time by more than the maximum number of concurrent users allowed under the Licensee’s purchased license level. For purposes of clarification, while the multi-user Software may be installed on a network or on multiple computers, the one-Site limitation for installation of the Software Data File described above shall apply to multi-user Licensees (subject to Section 2, below). ALL LICENSES: All other limitations and provisions of this Agreement apply to both the single-user and multi-user products, whether referred to specifically or otherwise.
- TRANSFER AND COPYING. Licensee may transfer the Software Data File from one Site to another only with the prior written consent of Licensor, and only if such transfer is accomplished with the assistance of Licensor. Licensee shall erase all copies of the Software Data File in any form or format from the first Site before installing it at the second Site. The second Site must conform with the definitions of a Site set forth herein, and Licensee continues to be obligated under all terms of this Agreement. Licensee may install and use the Software within Licensee's own organization only. Licensee may not reverse-engineer, disassemble, decompile, or in any other way modify the Software. Licensee may copy the Documentation for Licensee's own internal use only; Licensee is prohibited from copying or distributing the Software or the Documentation to any person other than to an employee of Licensee. Licensee may create a single backup copy of the Software for Licensee’s own use, which copy may not be distributed for any period of time to any other person or company. Resale, renting, sublicensing, or lending of the Software or Documentation is prohibited. Licensee must use reasonable diligence to discover if any permitted user is in violation of this Agreement and, upon discovery, Licensee shall immediately notify Licensor, and shall use its best efforts, including legal action, to remedy or eliminate the violation. Failure of Licensee to report or remedy violations of this Agreement is a material breach of this Agreement, and shall immediately void all rights which Licensee may have hereunder.
- OWNERSHIP. The Software is a proprietary product of Licensor, and is protected under U.S. copyright law and international treaties. Any copy of the Software made by Licensee in accordance with this Agreement shall contain Licensor's copyright notices. All rights, title and interest, including all worldwide copyrights, patents, trade secrets, and confidential and proprietary intellectual property rights such as trademark or trade name, as well as any good will in the Software and all copies of the Software, which are not expressly granted in this Agreement are retained by Licensor. The Software is a trademark of Licensor.
- TERM. This Agreement is effective upon Licensee's indicating its assent to its terms and conditions in the manner specified above and shall continue until terminated. Licensee may terminate this Agreement at any time by deleting all copies of the Software and Documentation, and any portions thereof, from the computers or network servers upon which they are installed (as permitted by the terms herein) and destroying all such copies. Licensor may terminate this Agreement immediately if Licensee breaches any term of this Agreement. Licensee will delete and destroy all existing copies of the Software and Documentation, and any portions thereof, upon notification of Licensor termination of this Agreement.
- LIMITED WARRANTY. Licensor warrants that for a period of thirty (30) days from delivery (the "Warranty Period"), the Software will be free from defects in the medium in which it is provided. Licensor does not warrant that Licensee's use of the Software will be uninterrupted or error-free. If, during the Warranty Period, the Software does not meet this limited warranty, Licensee may contact Licensor and Licensor may, in Licensor’s sole discretion, replace the Software or refund Licensee's purchase price. The foregoing constitutes Licensee's sole and exclusive remedy for breach by Licensor of any warranties (express or implied) made under this Agreement. This limited warranty is void if failure of the Software has resulted from accident, abuse, misuse, or misapplication. Licensee and all users thereunder must comply with all applicable federal and state laws regarding use of the Software. Any replacement Software will be warranted for thirty (30) days from Licensee's date of receipt. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE SOFTWARE AND THE DOCUMENTATION ARE LICENSED "AS IS," AND LICENSOR DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, AS PERMITTED BY LAW. For warranty claims, contact Licensor at [email protected] or post addresses set forth below. Licensee may purchase support services at the time of sale or after the Warranty Period has expired based on Licensor's then-published rates for support services, as addressed in Addendum A attached hereto.
- LIMITATION OF LIABILITY. Licensor's and its agents’ cumulative liability to Licensee and all other parties arising out of or relating to this Agreement shall not exceed the license fee paid by Licensee to Licensor for the use of the Software. Neither Licensor nor its agents shall be liable for any indirect, special, incidental or consequential damages or similar damages, including lost profits or lost data arising out of the use or inability to use the Software, even if Licensor has been advised of the possibility of such damages, as is permitted by applicable law.
- U.S. GOVERNMENT LICENSES. The Software and the Documentation are provided with restricted and limited rights for purposes of government contracting and subcontracting. Use, duplication or disclosure by the Government is subject to restrictions as set forth in Subparagraph 252.227-7013(c)(1)(ii) (Rights in Technical Data and Computer Software) of the Department of Defense Federal Acquisition Regulations Supplement or Subparagraphs 52.227-19(c)(1) and (c)(2) Commercial Computer Software - Restricted Rights) of Title 48 of the Code of Federal Regulations, as applicable.
- EXPORT ASSURANCES. Licensee may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations, including without limitation, the United States Export Administration Act, the Trading with the Enemy Act, the International Emergency Economic Powers Act and any regulations thereunder. Any transfer of technical data outside the United States by any means, including the Internet, is an export which is subject to export control requirements under US law. The Software may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident, wherever located, of) Cuba, Libya, North Korea, Iran, Iraq, Angola, Syria or any other country to which the US prohibits exports of goods or technical data; or (ii) to anyone on the US Treasury Department's Specially Designated Nationals List or the Table of Denial Orders issued by the Department of Commerce.
- RIGHT TO AUDIT. Licensee shall comply with all reasonable requests of Licensor pertaining to Licensee’s use of the Software to ensure Licensee’s compliance with the terms of this Agreement. Licensor shall be permitted reasonable access to any books, records, and computer systems of Licensee pertaining to this Agreement no more than once annually, or at any time if Licensor has reason to believe Licensee is in material breach of this Agreement. Licensor shall pay for the cost of such audits, provided that Licensee shall reimburse Licensor in the event such audit reveals that Licensee has breached or is in breach of the Agreement. Further, Licensee shall promptly pay to Licensor any underpayment discovered by such audit, together with interest at the rate of 1½% per month from the original due date of the underpayment. Audits shall be conducted upon no less than five (5) business days’ advance notice during regular business hours at Licensee’s offices and in such manner as not to unduly interfere with Licensee’s normal business activities.
- NON-TRANSFERRABLE LICENSE. Licensee may not assign or otherwise transfer Licensee's rights under this Agreement to another party.
- GOVERNING LAW. This Agreement shall be governed by the substantive laws of the State of North Carolina, and the exclusive venue of any disputes arising hereunder shall be the District and Superior Courts of Rutherford County, North Carolina, and the Western District of North Carolina federal court. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. Acceptance of this Agreement by Licensee waives any objection to application of law or venue under this provision.
- LEGAL AUTHORITY. Each party hereto represents that it has full authority to execute and perform this Agreement; this Agreement constitutes the legal, enforceable and binding obligation of each party; the execution and performance of this Agreement by each party will not violate any laws or breach any other agreement; and no approval, action or authorization by any governmental authority or agency is required for the party’s execution and performance or, if it is or will be, such approval, action or authorization has been or will be obtained and written evidence has been provided to the other party thereafter.
- AMENDMENT. This Agreement may only be modified or amended in a writing executed by an authorized representative of Licensor.
Should you have any questions concerning this Agreement or if you desire to contact Licensor for any reason, please contact Customer Service Dept., ImagineTime, Inc., P.O. Box 667, Rutherfordton, NC 28139.
SECTION 1. PURCHASE. Support services (“Support”) are available for purchase by Licensee at the time of Software purchase, or at any time following Software purchase.
SECTION 2. COST. Term Support (as defined below) shall be prepaid in full by Licensee, at the current rate for such services, at the time of the Term Support purchase. Licensees may purchase Support as needed, to be provided on a per-incident basis (“Per-Incident Support”). Per-Incident Support shall have no term and shall only entitle Licensee to support for a specific incident. Per-Incident Support will be charged to Licensee at such rates as Licensor shall determine at the time of purchase, and the cost of Per-Incident Support shall be due and payable immediately upon purchase.
SECTION 3. TERM. Support may be purchased for a term (“Term Support”) of approximately one (1) year (the “Term”), which shall commence on the day of purchase and shall automatically expire at 12:00am on the 15th day of the 12th month following the day of purchase. (For example, if Term Support is purchased on March 1, Year 1, it would automatically expire on March 15, Year 2, unless renewed according to the terms below. If Term Support is purchased on March 30, Year 1, it would also automatically expire on March 15, Year 2, unless renewed according to the terms below.) Term Support shall not automatically renew upon expiration; any renewal requires full payment of the next year’s Term Support on or prior to the expiration date of the current Term. Late payment of support renewals does not alter the term start date.
SECTION 4. TERMINATION. Notwithstanding anything to the contrary herein, Term Support is terminable by Licensor at any time during the Term, for any reason. Following Termination, the parties shall no longer have any obligation to one another under this Agreement; provided however, termination shall not relieve Licensee from the obligation to pay any unpaid fees and expenses accrued prior to termination (including, without limitation, payment for work performed prior to termination). Per-Incident Support terminates automatically upon completion of Support services for such specific incident. In the event licensee for any reason shall terminate support during the support term, no refund shall apply.
SECTION 5. NO WARRANTIES. By providing Support, Licensor makes no representation as to any updates to or improvement of the Software, and makes no warranties as to the effectiveness of Support provided. Support may be provided by third parties with which Licensor has contracted to provide such services.