WEBMETRICS SCRIPT RECORDER LICENSE AGREEMENT

 

BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE PRODUCT (AS DEFINED BELOW), YOU AGREE ON BEHALF OF YOURSELF AND THE ENTITY YOU REPRESENT (IF APPLICABLE) THAT YOU OR SUCH ENTITY ARE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT AS THE "LICENSEE." IF YOU OR THE ENTITY YOU REPRESENT, AS APPLICABLE, DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST SELECT THE CANCEL BUTTON ON THE SOFTWARE INSTALLATION APPLICATION, YOU MUST NOT INSTALL OR USE THE PRODUCT OR ANY PORTION THEREOF, AND YOU OR THE ENTITY YOU REPRESENT, AS APPLICABLE, DO NOT BECOME A LICENSEE UNDER THIS AGREEMENT.

 

YOU AGREE TO ACCEPT NOTICES ELECTRONICALLY.

 

1. DEFINITIONS.

 

a) "Agreement" means this Webmetrics Script Recorder License Agreement.

b) "Product" means the executable code version of those features of the Webmetrics RIA Script Recorder identified as the features of the free Webmetrics RIA Script Recorder found at www.webmetrics.com, and any Webmetrics created Skins and Webmetrics Plug-ins, Updates or Upgrades distributed by Webmetrics for use with the Product, whether Licensee installs them at the time of installation of the Webmetrics RIA Script Recorder or separately from the webmetrics.com website.

c) "Documentation" means the help pages hosted on the webmetrics.com website, which are accessible through the Webmetrics Help menus.

d) "Plug-in" means a plug-in (a small software program that adds a specific capability to another program, such as the Webmetrics RIA Script Recorder) owned and offered by Webmetrics as part of the Product download and/or via http://www.webmetrics.com for use with the Product.

e) "Skin" means a graphical interface for the Product that changes the look but not the functionality, and includes the text files that define how the skin is built, the scripts that define how it should behave, and the graphics that create the visual look.

f) "Update" means a revision to the Product designated by a change in the version number to the right of the decimal place.

g) "Upgrade" means a revision to the Product designated by a change in the version number to the left of the decimal place.

2. LICENSE GRANT.

 

a)      Subject to Licensee's compliance with the terms and conditions of this Agreement, Webmetrics, Inc. ("Webmetrics") grants Licensee a revocable, free-of-charge, personal, non-exclusive, non-transferable, non-sublicensable license to install and use the Product.

b)      Licensee agrees to register the Product with Webmetrics, by providing contact information including email address and telephone number before the Product is installed.

3. RESTRICTIONS ON USE. Licensee may not: (i) modify or create any derivative works of the Product; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to (a) derive the source code, underlying ideas, algorithms, structure or organization of the Product, or (b) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Product (except to the extent applicable laws specifically prohibit such restriction); (iii) attempt to access any features of the Product if Licensee has not paid the applicable upgrade fees to enable upgrade or pay-for features or by any manner or method other than using the key provided by Webmetrics; (iv) redistribute, OEM, bundle, encumber, sell, rent, lease, sublicense, or otherwise transfer the Product or rights thereto; (v) use the Product in any manner that violates any U.S. or foreign laws or regulations or any third party's rights, including copyright, privacy or publicity rights, or other intellectual property right; (vi) use the Product in a timesharing or service bureau arrangement; or (vii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product; or (viii) redistribute, OEM, bundle, encumber, with other products or services.

 

4. UPGRADES AND UPDATES.

 

a) This license does not entitle Licensee to Plug-ins, Updates or Upgrades to the Product. In order to receive a Plug-in, Update or Upgrade to the Product, Licensee must agree to the then current license agreement and download the Update or Upgrade from http://www.webmetrics.com.

5. LICENSEE REPRESENTATIONS. Licensee represents and warrants that it has the legal capacity to enter into this Agreement, that it will use the Product only for lawful purposes and in accordance with this Agreement, and that it will not use the Product to violate any law, regulation or ordinance or any right of Webmetrics or its licensors or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent. Licensee further represents and warrants that Licensee has adequate legal capacity to enter into binding agreements such as this Agreement.

 

6. ELECTRONIC NOTICE DELIVERY POLICY. Webmetrics, when possible, transacts with users of its products electronically. YOU CONSENT TO RECEIVE ELECTRONICALLY FROM WEBMETRICS ANY PRIVACY OR OTHER NOTICES, AGREEMENTS, DISCLOSURES, REPORTS, DOCUMENTS, COMMUNICATIONS, OR OTHER RECORDS (COLLECTIVELY, "NOTICES"). You agree that Webmetrics generally can send you electronic Notices to the e-mail address that you provided to Webmetrics, if any. You must check your designated e-mail address regularly for Notices. You may withdrawal consent to receive Notices electronically at any time provided you terminate your License and use of the Product.

 

7. TERMINATION. Should Licensee breach this Agreement, Licensee's right to use the Product shall terminate immediately and without notice. The respective rights and obligations of Webmetrics and Licensee under the provisions of Sections 3 ("Restrictions on Use"), 6 ("Electronic Notice Delivery Policy"), 7 ("Termination"), 8 ("Proprietary Rights"), 10 ("Indemnification"), 11 (.DISCLAIMER OF WARRANTY.), 12 ("Limitation of Liability"), and 15 ("Miscellaneous") shall survive expiration or termination of this Agreement and Licensee agrees to continue to be bound by those terms. Upon termination, Licensee shall destroy all copies of the Product.

 

8. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in the Product shall remain in Webmetrics and/or its licensors and other suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Webmetrics. or its licensors' or other suppliers' ownership of or rights with respect to the Product. The Product is protected by copyright and other intellectual property laws and by international treaties. All trademarks used in connection with the Product are owned by Webmetrics, its affiliates or its licensors and other suppliers, and no license to use any such trademarks is provided hereunder. Licensee agrees that Webmetrics may use in any manner and without limitation all comments, suggestions, complaints and other feedback Licensee provides relating to the Product.

 

9. OPEN SOURCE CODE. The Product itself does not use any open source technology but ties into open source components in order to be more useful. The licenses and availability of source code for such components are specified in the copyright notice file delivered with this Product. Customer acknowledges that certain software installed by the Company in connection with its Services is licensed free of charge pursuant to the GNU General Public License (.GPL.) and is subject to all of the terms and conditions of the GPL (including the license terms and notices, disclaimer of warranties, and limitation on liabilities, as set forth therein).

 

10. INDEMNIFICATION.  Licensee agrees to indemnify, hold harmless, and, at Webmetric.s request, to defend Webmetrics (at Licensee's expense), including Webmetrics' affiliates, officers, directors and licensors, from and against any and all suits, proceedings, claims, demands, costs, damages, losses, liabilities, fees and costs, including reasonable attorneys' fees and costs (collectively, "Claims and Liabilities"), arising out of or relating to any breach of this Agreement or claim that Licensee's use of the Product has injured or otherwise violated any right of any third party or violates any law.  If Licensee fails to assume control of such defense within ten (10) days of Webmerics' request, Webmetrics may defend against and/or settle any such Claims and Liabilities directly (at Licensee's expense).

 

11. DISCLAIMER OF WARRANTY. THE PRODUCT IS PROVIDED WITH ALL FAULTS ON AN "AS IS" BASIS. WEBMETRICS, ITS LICENSORS AND OTHER SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES THAT THE PRODUCT IS FREE OF DEFECTS, VIRUS FREE, AND ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT THE FUNCTIONALITY OF THE PRODUCT WILL MEET LICENSEE'S REQUIREMENTS, OR THAT ERRORS IN THE PRODUCT WILL BE CORRECTED, AND THE IMPLIED WARRANTIES THAT THE PRODUCT IS MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. FURTHER, WEBMETRICS, ITS LICENSORS AND OTHER SUPPLIERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCT IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WEBMETRICS OR A WEBMETRICS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. WEBMETRICS AND ITS LICENSORS AND OTHER SUPPLIERS HAVE NO LIABILITY WITH RESPECT TO LICENSEE'S USE OF THE PRODUCT. LICENSEE BEARS THE ENTIRE RISK AS TO THEIR QUALITY AND PERFORMANCE AND ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.

 

12. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WEBMETRICS, OR THEIR RESPECTIVE PARENTS, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS, AGENTS OR RESELLERS (COLLECTIVELY, THE "WEBMETRICS GROUP") BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, THE WEBMETRICS GROUP'S ENTIRE COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY) AND REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR PRODUCT, AS DETERMINED AT WEBMETRIC.S SOLE DISCRETION, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF WEBMETRICS TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. ADDITIONALLY, THE WEBMETRICS GROUP SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF: (i) CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH OR USED WITH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT; OR (ii) THE USE OF PLUG-INS OR SKINS DEVELOPED BY THIRD PARTIES AND MADE AVAILABLE ON WEBMETRIC.S WEBSITE FOR USE WITH THE PRODUCT.

 

13. EXPORT CONTROLS. Licensee agrees to comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority, and not to export, re-export or import the Product or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. For example, Licensee may not export or re-export any commodities, software, or technical data received from Webmetrics, or any direct product of such commodities, software or technical data, to any proscribed country, party, or entity listed in the applicable laws, regulations, and rules of the U.S. Government unless properly authorized. As applicable, each party shall obtain and bear all expenses and responsibility relating to any necessary licenses and/or exemptions with respect to its own export or re-export of the Product from the U.S.

 

14. INJUNCTIVE RELIEF. Licensee acknowledges and agrees that, notwithstanding any other provisions of this Agreement, any breach or threatened breach of this Agreement by Licensee shall cause Webmetrics irreparable damage for which recovery of money damages would be inadequate and that Webmetrics therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.

 

15. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, which may only be modified by a written amendment signed by Licensee and an authorized executive of Webmetrics. (b) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the state of California, U.S.A., excluding its conflict of law provisions. (c) Licensee expressly agrees that jurisdiction for any claim or dispute relating to or arising out of this Agreement resides exclusively in the federal and state courts located in San Diego, California and the parties irrevocably consent to the sole and exclusive jurisdiction thereof. (d) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (e) If any provision in this Agreement should be held illegal or unenforceable, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect, or Webmetrics may at its option instead terminate this Agreement. (f) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (g) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. Webmetrics may assign this Agreement to any entity at its sole discretion. (h) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (i) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (j) Any unauthorized transfer or sublicense of the Product will cause the License to be automatically terminated.

 

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