Exhibit 10.7
SOFTWARE LICENSE AGREEMENT
for
ACCUCARE
IMPORTANT-- PLEASE READ THIS AGREEMENT CAREFULLY BEFORE OPENING THE SOFTWARE
PACKET(S) AND/OR INSTALLING AND USING THE SOFTWARE. THIS SOFTWARE LICENSE
AGREEMENT (THIS "AGREEMENT") IS AN AGREEMENT BETWEEN YOU AND ACCURATE
ASSESSMENTS, INC. ("ACCURATE") FOR THE ACCURATE SOFTWARE PRODUCT IDENTIFIED
ABOVE, WHICH INCLUDES COMPUTER SOFTWARE AND MAY INCLUDE ASSOCIATED MEDIA,
PRINTED MATERIALS, AND "ONLINE" OR ELECTRONIC DOCUMENTATION INCLUDING QUESTIONS,
IMAGES, ICONS AND TEXT INCORPORATED INTO AND/OR ACCOMPANYING THE SOFTWARE
(COLLECTIVELY, THE "SOFTWARE PRODUCT").
BY INSTALLING OR USING THE SOFTWARE, YOU ARE AGREEING TO BE LEGALLY BOUND BY THE
TERMS OF THIS SOFTWARE LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO
NOT INSTALL OR USE THE SOFTWARE. INSTEAD, PROMPTLY OBTAIN A RETURN APPROVAL
NUMBER FROM ACCURATE, AND RETURN THE SOFTWARE PACKAGE(S) AND THE ACCOMPANYING
ITEMS (INCLUDING ANY WRITTEN MATERIALS OR OTHER PACKAGING) WITHIN THIRTY (30)
DAYS TO ACCURATE FOR A FULL REFUND (AS DESCRIBED MORE FULLY BELOW).
ACCURATE RETAINS ALL THE INTELLECTUAL PROPERTY IN THE SOFTWARE PRODUCT; YOU ARE
ACQUIRING A NON-EXCLUSIVE LICENSE TO USE THE SOFTWARE PRODUCT ON ONLY THE NUMBER
OF COMPUTERS THAT YOU PAY FOR, AS SET OUT MORE FULLY BELOW.
THE SOFTWARE PRODUCT IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT
TREATIES AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. THE SOFTWARE
PRODUCT IS LICENSED, NOT SOLD.
PERMITTED USE/GRANT OF LICENSE
ACCURATE hereby grants to you a personal, non-transferable and
non-exclusive right to use the Software Product. This permits you to use
one (1) copy of the Software Product on a single computer; if you wish to
use the Software Product on additional computers, you must obtain a
separate license for each such computer. The Software Product shall be in
"use" on a computer when it is loaded into temporary memory (i.e., RAM) or
installed into permanent memory (e.g., hard disk, CD-ROM, or other storage
device) of that computer. Installation on a network server for the sole
purpose of internal distribution shall not constitute "use" for which a
separate license is required, PROVIDED you have a separate license for each
computer to which the Software Product is distributed. NETWORKS AND ANY AND
ALL COMPUTER WORKSTATIONS REQUIRE SEPARATE LICENSES.
RESERVATION OF RIGHTS
All rights not expressly granted are reserved by ACCURATE.
COPYRIGHT/RESTRICTIONS ON USE
The Software Product (including the written materials, questions, images,
icons and text incorporated into and/or accompanying the software) is owned
by ACCURATE and is protected by United States copyright laws. The Software
Product also contains trade secrets and other
proprietary materials which are owned by ACCURATE. You agree that you will
not (1) copy the Software Product; (2) copy any of the written materials
for any purpose; (3) modify, rent, lease, loan, create derivative works
based upon, copy or distribute the Software Product in whole or in part;
(4) export or grant a sub-license of the Software Product or the license
contained herein to any other party unless authorized by ACCURATE in
writing; (5) allow the Software Product to be used by more than the number
of computer workstations for which licensees have bee purchased; and (6)
reverse engineer, decompile, or disassemble the Software Product.
OWNERSHIP
ACCURATE is the owner of all intellectual property rights in the Software
Product, related written materials, logos and names, and all other related
materials which accompany the software. No title to the intellectual
property in the above-described software or materials is transferred to you
by this Agreement.
LIMITED WARRANTY
ACCURATE warrants that the Software Product will perform substantially in
accordance with the accompanying written materials for a period of one (1)
year from the date of receipt by you of the Software Product.
ACCURATE DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE SOFTWARE PRODUCT AND
THE ACCOMPANYING WRITTEN MATERIALS. ACCURATE DOES NOT WARRANT THAT THE
SOFTWARE PRODUCT WILL MEET YOUR PARTICULAR REQUIREMENTS OR THAT ITS
OPERATION WILL BE ERROR FREE.
IN NO EVENT SHALL ACCURATE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES FOR
LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR
INABILITY TO USE THIS PRODUCT, EVEN IF ACCURATE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ACCURATE'S ENTIRE LIABILITY UNDER
ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY
PAID BY YOU FOR THE SOFTWARE PRODUCT. THE LIMITATIONS AND EXCLUSIONS STATED
HEREIN SHALL SURVIVE A BREACH OF THIS AGREEMENT.
ACCURATE is not responsible for any problems that may occur as a result of
any incompatibility between the Software Product and any other software or
hardware.
Some states/jurisdictions do not allow the exclusion of implied warranties,
nor the exclusion or limitation of liability for consequential or
incidental damages. THEREFORE, THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT
APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION
TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE PRODUCT.
RETURN APPROVAL NUMBER
If, within thirty (30) days from the postmark date the Software Product is
shipped, you desire to return the Software Product for a refund, you will
need to obtain a RETURN APPROVAL NUMBER from ACCURATE. Software Product
returned without a RETURN APPROVAL NUMBER written on the outside of the
return envelope will not be accepted for refund. Additionally, no refund of
Software Product will be given to anyone who has been given the APPROVAL
AUTHORIZATION for unlimited assessment of the Software Product. A $40
Restocking Fee will be charged on all returned software.
The APPROVAL AUTHORIZATION for unlimited assessment access is for one (1)
license agreement, and is limited to use on one (1) personal computer.
Individual license agreements must be purchased for additional personal
computers. Once APPROVAL AUTHORIZATION for unlimited assessment access is
given and verified, no Return Approval will be available, and the thirty
(30) day return for refund is null and void.
TECHNICAL AND CLINICAL HELPLINE
ACCURATE shall provide a nine-hour (8:00 a.m. to 5:00 p.m. CST), Monday
through Friday, helpline staffed by experienced technical and clinical
personnel. This service is designed to handle technical operations issues
and clinical questions. For NETWORK VERSIONS of the Software Products and
for versions sold for stand alone PCs, the first year of helpline service
shall be included as part of the purchase price of the Software Product.
Subsequent helpline support can be purchased from ACCURATE in accordance
with then-current pricing schedules.
TERMINATION
You may terminate this Agreement at any time by destroying all copies of
the Software Product and related materials. ACCURATE may terminate this
license without notice if you fail to comply with any of the terms of this
Agreement. Such termination by ACCURATE shall be in addition to any and all
other legal remedies that may be available to ACCURATE.
BACKUP COPY
You may make one backup version of the installed and authorized SOFTWARE
PRODUCT solely for backup of a network system. In some cases, however,
successful restoration or reinstallation of the SOFTWARE PRODUCT following
a hardware malfunction will require obtaining a SOFTWARE USE AUTHORIZATION
CODE to reauthorize your use of the SOFTWARE PRODUCT.
MISCELLANEOUS
This is the entire agreement between you and ACCURATE concerning your
license to use the Software Product and related materials. This Agreement
supersedes all prior agreements, whether oral or written, regarding this
subject matter. No amendment to or modification of this Agreement shall be
binding unless in writing and signed by duly authorized representative of
ACCURATE. This Agreement shall be governed by the laws of the State of
Nebraska.
Should you have any questions concerning this Agreement, or if you desire
to contact Accurate for any reason, please contact either at the following
address: Accurate Assessments, Inc., 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx,
XX 00000 (402) 341-8880 or at xxxx@xxxxxxxxxxxxxxxxxxx.xxx.
