| DINARI SYSTEMS LLC XPERTMART™ End User License Agreement NOTICE TO USER: PLEASE READ THIS CONTRACT CAREFULLY. BY USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, IMMEDIATELY CEASE USING THIS SOFTWARE. 1) DEFINITIONS “Licensee” means you, the user and licensee of the software. “Software” means the XpertMart™ software, including: all files and contents on the disks, CD-ROMs or other media with which this License is provided; related documentation and written materials or files; and any upgrades, modifications or additional versions or copy of the Software provided to you subsequent to this agreement. “Dinari” means Dinari Systems LLC a Delaware Corporation, 15 Village Rock Ln #8, Natick, MA 01760. “Use” means to install, download, copy, access or otherwise benefit from using the functionality of the Software in accordance with the Documentation. "Permitted Number" means one (1) unless otherwise indicated under a valid license (e.g. volume license) granted by Dinari. 2) LICENSE In consideration of your undertaking to comply with the terms and conditions of this License Agreement, Dinari grants you, LICENSEE, a non-exclusive, non-transferable license to use the Software and to view the documentation on the Permitted Number of computers. This Agreement does not grant LICENSEE any rights to patents, copyrights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights, functions or licenses in respect of the Software. 3) INTELLECTUAL PROPERTY RIGHTS AND RESTRICTIONS ON USE The Software contains copyright material and, in its human readable form, it contains trade secrets and proprietary information owned by or licensed to Dinari and is confidential. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Dinari Systems LLC. Title to and ownership of the Software and the documentation that accompanies the Software and all intellectual property rights in the Software and said documentation are and shall remain the sole property of Dinari Systems LLC. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Unless specifically and expressly permitted by Dinari, you agree not to modify, adapt or translate the Software. LICENSEE may not de-compile, reverse engineer, disassemble or otherwise reduce it to human readable form. LICENSEE may not modify, rent, lease, loan the Software or distribute copies of it. LICENSEE may not electronically transfer the Software over a network, a telephone circuit or the Internet. LICENSEE may not create derivative software based upon any trade secret or proprietary information of Dinari. LICENSEE may not sub-license, assign or transfer this License. LICENSEE may not copy the printed information in the package. LICENSEE may not adapt or use any trademark or trade name which is likely to be similar to or confusing with that of Dinari Systems LLC or take any other action which impairs or reduces the trademark rights of Dinari Systems LLC. LICENSEE may make one copy of the Software for backup or archival purposes, provided that LICENSEE duplicates the copyright notice and other identifying information on the disk's label and affix such notice to the backup copy. LICENSEE may print a copy of the documentation from the disk only for LICENSEE's use for the sole purpose of operating the Software. LICENSEE further acknowledges that this License is not a sale or an assignment of Dinari’s intellectual property rights in the Software and the accompanying documentation and that Dinari and its licensors continue to own title to the Software and copyright to the printed information. No right, title or interest in or to any trademark, service mark, logo or trade name of Dinari is granted under this Agreement. 4) NO WARRANTY The Software is being delivered to you "AS IS" and Dinari makes no warranty as to its use or performance. Dinari does not and cannot warrant the performance or results you may obtain by using the software. Dinari makes no warranties conditions, representations, or terms (express or implied whether by statute, common law, custom, usage or otherwise) that the Software is free of defects, merchantable, fit for a particular purpose or non-infringing. The entire risk as to the quality and performance of the Software is with you. This disclaimer of warranty constitutes an essential part of this license. Dinari does not warrant, guarantee or make any representations that the functions contained in the Software will meet LICENSEE's requirements or that the operation of the Software will be uninterrupted or error-free. Any other Software and any hardware furnished with or accompanying the Software is not warranted by Dinari. 5) LIMITATION OF LIABILITY Under no circumstances and under no legal theory, whether tort (including negligence), contract, or otherwise will Dinari be liable for any special, consequential, incidental or direct or indirect damages (including without limitation loss of profit, savings or data) arising out of licensee's use or inability to use the software or printed information accompanying it, whether or not Dinari has been advised of the possibility of such loss, however caused and on any theory of liability. This exclusion includes any liability that may arise out of third-party claims against licensee. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. The foregoing limitations and exclusions apply to the extent permitted by applicable law in your jurisdiction. Dinari's aggregate liability and that of its suppliers under or in connection with this agreement shall be limited to the amount paid for the software, if any. 6) EXPORT REGULATIONS LICENSEE agrees that the Software and other technical information, both printed and verbal, received from Dinari will not be exported outside of the United States except as permitted by the laws and regulations of the United States. If LICENSEE rightfully obtains the Software and accompanying information outside of the United States, LICENSEE agrees not to re-export the Software and information except as permitted by the laws and regulations of the United States and the jurisdiction in which LICENSEE obtained the Software. In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to Use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement. 7) US GOVERNMENT END USERS The Software and Documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, all U.S. Government End Users acquire the Software with only those rights set forth herein. Unpublished-rights reserved under the Copyright laws of the United States. Dinari Systems LLC, 15 Village Rock Ln #8, Natick, MA 01760, USA. 8) TERMINATION This License shall remain in full force and effect unless and until terminated. This License will terminate immediately, automatically and without notice if LICENSEE fails to comply with any provision of this Agreement. Upon termination, LICENSEE must stop using the Software, erase or destroy all copies of the Software, and destroy all printed information provided with the Software. 9) COMPLIANCE If you are a business or organization, you agree that upon request from Dinari, you will within thirty (30) days fully document and certify that use of any and all Software at the time of the request is in conformity with your valid licenses from Dinari. 10) GOVERNING LAW This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of Delaware and controlling U.S. federal law. No choice of law rules of any jurisdiction will apply. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. 11) ENTIRE AGREEMENT This agreement constitutes the entire agreement between you and Dinari Systems LLC and supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party. If any provision of this agreement is held invalid, the remainder of this agreement shall continue in effect. 12) WAIVER The failure by Dinari to enforce at any time any of the provisions of this agreement, to exercise any election or option provided herein, or to require at any time the performance by you of any of the provisions herein will not in any way be construed as a waiver of such provisions. XpertMart is a registered trademark of Dinari Systems LLC in the United States and/or other countries. Copyright © 2003 Dinari Systems LLC, all rights reserved. Dinari Systems LLC 15 Village Rock Ln # Natick, MA 01760 |