End User License Agreement (EULA)

This agreement, effective between streamWrite, llc. ("Company") and the end user of streamWrite software ("Customer"), is entered into to license Customer to receive from Company and use certain proprietary computer software and documentation ("Software").

Nonexclusive License

Subject to the terms and conditions of this Agreement and any limitations contained in the Exhibits, and subject to Customer’s payment of all license fees for the Software, the Company hereby grants and Customer accepts a nonexclusive, nontransferable, limited license, without right to sublicense, (i) to install the Software in object code form on Customer’s computers at the sites identified in the Sales Agreement and any new or replacement sites subsequently identified by Customer in writing; and (ii) to use the Software solely in support of Customer’s use of the Software to access and use the Software as described in the Sales Agreement solely for Customer’s internal business purposes and for no other purposes.  The license to use the Software is provided “as is”, and does not include any right to receive or install any software products or any right to receive any source code. This Agreement is for a license of intellectual property, rather than for the sale of goods (even though some tangible items may be provided) and this Agreement shall not be governed by the Uniform Commercial Code.  “Software” means the software and related documentation owned by the Company and used to provide the Software to the Customer including the Software and other any other Company software identified in the Sales Agreement. 

 

Restrictions

The Software is protected by both United States copyright law, international treaty provisions and potentially by other intellectual property rights. Unauthorized copying of the Software is expressly forbidden. Customer may not (a) distribute copies of the Software to others, including but not limited to, consultants, affiliates, independent contractors, Customer’s users or any other third party; or (b) sell, loan, rent, lease, lend, transfer, assign or otherwise dispose to anyone else the Software. Customer may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software. Customer may not access or use the Software in order to compete with the Company or to assist someone else to compete with the Company or use the Software in a way that violates any law, regulation or mandate.  Customer may be held legally responsible for any copyright infringement that is caused or incurred by Customer’s failure to abide by the terms of this Agreement. Except as expressly provided in this Agreement or by local law, Customer may not otherwise make copies of the Software, including any printed materials accompanying the Software (the "Documentation"). Customer may copy such Documentation for its internal use only. IF CUSTOMER TRANSFERS POSSESSION OF ANY COPY, OF THE SOFTWARE, DOCUMENTATION OR RELATED MATERIAL TO ANOTHER PARTY IN VIOLATION OF THIS AGREEMENT, THIS LICENSE IS AUTOMATICALLY TERMINATED.

Nondisclosure

Software is proprietary to, and a valuable trade secret of, Company. In consideration of Company's disclosure of Software to Customer, Customer will treat Software with the same degree of care and safeguards that it takes with its own trade secrets, but in no event less than a reasonable degree of care. Customer will not, without Company's prior written consent:(a) reverse engineer, decompile, or disassemble Software or any portion of it;(b) copy any portion of Software;(c) download Software in a retrieval system or computer system of any kind except as authorized by this Agreement; or(d) disclose any portion of Software to any third party. Customer will limit use of Software to those employees, agents and consultants of Customer who are performing the evaluation for Customer. Customer must advise such people that Software is Company's trade secret and they must be under an express written obligation to maintain its confidentiality. The restrictions and obligations contained in this clause will remain in effect until Software no longer constitutes a trade secret or until Company sends Customer written notice releasing it from this Agreement, whichever occurs first.

Ownership

All title and intellectual property rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music and text incorporated into the Software), the Documentation and any copies of the Software or Documentation are owned by the Company. Customer agrees that no title to the Software or Documentation is transferred to it, and that all rights not expressly granted to Customer hereunder are reserved by the Company.  By this Agreement, Customer conveys and assigns any rights it may acquire in the intellectual property rights associated with the Software or Documentation to the Company and agrees to execute all other documents that may be necessary to effectuate, memorialize or record the transfer conveyance and the Company’s ownership of any such intellectual property associated with the Software or Documentation.

NO WARRANTY

EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND DOCUMENTATION ARE DELIVERED "AS IS" AND WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND BY EITHER THE COMPANY OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, OR SUITABILITY OF ANY OF THE MATERIAL CONTAINED WITHIN THE SOFTWARE OR DOCUMENTATION. THE COMPANY MAKES NO WARRANTY THAT THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, COMPATIBLE WITH ANY HARDWARE OR SYSTEMS SOFTWARE CONFIGURATION, OR WILL MEET YOUR REQUIREMENTS.

INDEMNIFICATION

Customer agrees to indemnify, defend and hold harmless the Company, together with its partners, officers, directors, employees, and agents, against any liability (including reasonable attorney’s fees) arising out of any claim made against the Company arising out of or related to Customer’s (or its users) use of the Software or Documentation in violation of this agreement including, but not limited to, any claim that Customer’s (or its users) use infringes the intellectual property rights (including but not limited to, patent, trademark, and copyright rights) of any third party.  Customer will bear the expense of such defense and pay any damages and attorney’s fees which are attributable to such claim.

Limitation of Liability

Company shall not be responsible for any loss or damage to Customer or any third parties caused by Customer's use of Software. COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF SOFTWARE OR ANY PERFORMANCE OF THIS AGREEMENT.

No Assignments

This Agreement is personal to Customer. Customer shall not assign or otherwise transfer any rights or obligations under this Agreement.

Relationships

Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venturer, or employee of the other party for any purpose.

Severability

If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties.

Integration

This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations, and understandings. This Agreement may not be amended except in a writing signed by both parties.

Waiver

Waiver

The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.

Attorney Fees and Expenses

In a dispute arising out of or related to this Agreement, the prevailing party shall have the right to collect from the other party its reasonable attorney fees and costs and necessary expenditures.

Governing Law

This Agreement shall be governed in accordance with the laws of the State of California.

Jurisdiction

The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in Alameda, California in any action arising out of or relating to this Agreement. The parties waive any other venue to which either party might be entitled by domicile or otherwise.

Arbitration Clause

If there is any controversy, dispute, or claim by either party arising out of or relating to this agreement or any part thereof, such controversy, dispute, or claim shall be submitted to arbitration.  Such arbitration shall be determined in accordance with the rules and Regulations of the American Arbitration Association, and the parties shall be bound by the decision or determination of such arbitration.