SOFTWARE LICENSE AGREEMENT
In consideration for your use of the software and any updates, customizations and/or enhancements, entitled SupportWindow Server
("Software") provided by Bytewiser Data Systems, Inc. ("Licensor"),
you ("User") agree to the following terms and conditions. If you do not agree to these terms, you may not install
the software and you must return the package to your point of purchase immediately for a refund.
1. License. Licensor hereby grants the User a non-exclusive, non-transferable license to use the Software for
personal use on one computer by User only. Licensor reserves the right at any time, without liability or prior
notice, to change the features or characteristics of the Software, this Agreement, or the Software's documentation
and related materials.
2. License Restrictions.
a. User acknowledges that the Software and its structure, organization, and source code constitute valuable
trade secrets of Licensor. Accordingly, User agrees not to (i) copy, perform, distribute, modify, adapt, alter,
translate, or create derivative works from the Software; (ii) merge the Software with other software; (iii)
sublicense, lease, rent, or loan the Software to any third party; (iv) reverse engineer, decompile, disassemble, or
otherwise attempt to derive the source code for the Software; or (v) otherwise use the Software except as
expressly allowed in this Agreement.
b. User shall comply with all applicable export and import control laws and regulations in its use of the Software
and, in particular, User shall not export or re-export the Software without all required United States and foreign
government licenses. User understands that access and use of the Software from outside the United States may
constitute export of technology and technical data which may implicate export regulations and/or require export
license.
c. Licensor retains exclusive ownership of all worldwide copyrights, trade marks, service marks, trade secrets,
patent rights, moral rights, property rights and all other industrial rights in the Software and documentation,
including any derivative works, modification, updates, or enhancements. All rights in and to the Software not
expressly granted to User in this Agreement are reserved by Licensor. Nothing in this Agreement shall be
deemed to grant, by implication, estoppel or otherwise, a license under any of Licensor's existing or future
patents.
d. If User is an employee, contractor or agent of the United States Government, the following provision applies.
The Software and documentation are comprised of "commercial computer software" and "commercial computer
software documentation" as such terms as used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the
Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R.
12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set
forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995). Unpublished rights reserved under the
copyright laws of the United States.
e. User shall not use the Software in any way that violates any local, state, federal or law of other nations,
including but not limited to the posting of information that may violate third party rights, that may defame a third
party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other
computer crime regulations, etc. Licensor does not monitor or edit any transmissions, postings, routings or other
materials which User may send, post, route, transmit or otherwise move through or with the Software.
3. WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY
WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FUNCTIONALITY OR ITS BEING VIRUS
FREE. USER RECOGNIZES THAT THE AS IS CLAUSE OF THIS AGREEMENT IS AN IMPORTANT
PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH LICENSOR WOULD NOT HAVE
AGREED TO ENTER THIS AGREEMENT. LICENSOR AND THIRD PARTIES DISCLAIM ALL
WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE, INCLUDING
ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
AND NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT
REGARDING THE SOFTWARE SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE
RISE TO ANY LIABILITY OF OR THIRD PARTIES WHATSOEVER. USER ACKNOWLEDGES THAT
HE OR SHE HAS RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET
FORTH HEREIN.
9/30/01
(c) 2001 Judith Silver. All rights reserved.
SupportWindow Console Bytewiser Data Systems, Inc.
4. LIMITATION OF LIABILITY. LICENSOR SHALL NOT BE LIABLE TO USER OR ANY THIRD PARTY
FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES,
UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE
OR SAVINGS, LOSS OF GOODWILL, OR THE LOSS OF USE OF ANY DATA, EVEN IF LICENSOR
HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF.
UNDER NO CIRCUMSTANCES SHALL LICENSOR'S AGGREGATE CUMULATIVE LIABILITY
HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT
OF FEES ACTUALLY PAID BY USER UNDER THIS AGREEMENT. USER ACKNOWLEDGES THAT
THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS
AGREEMENT AND THAT LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT
THESE LIMITATIONS ON ITS LIABILITY.
5. Indemnification. User shall defend, indemnify and hold harmless Licensor, its officers, directors contractors,
agents and employees, from any and all claims or causes of action arising out of use of or related to the Software,
and pay any and all damages and expenses (including but not limited to attorneys fees incurred by Licensor
and/or third parties) in connection therewith. Licensor reserves the right, at it own expense, to assume the
exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User
shall cooperate with the Licensor in asserting any available defenses.
6. Termination. This Agreement is effective unless terminated by Licensor at any time for any breach of this
Agreement. User may terminate this Agreement at any time by destroying all copies of the Software in User's
possession and deleting the Software from User's computer system and other storage media, or by returning all
such copies to Licensor. This Agreement and User's right to use this Software automatically terminate if User
breaches this Agreement.
7. Legal Compliance. Licensor may suspend or terminate use of Software and this Agreement immediately
upon receipt of any notice which alleges that User has used the Software for any purpose that violates any local,
state, federal or law of other nations, including but not limited to the posting of information that may violate third
party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault
others, that may violate hacking or other criminal regulations, etc. of its agents, officers, directors, contractors or
employees. In such event, Licensor may disclose the User's identity and contact information, if requested by a
government or law enforcement body, or as a result of a subpoena or other legal action, and Licensor shall not be
liable for damages or results thereof and User agrees not to bring any action or claim against this Licensor for
such disclosure.
8. Miscellaneous. Either party may assign this Agreement to any successor in interest who purchases or
through change in control owns greater than fifty percent of the assets or equity of such entity and agrees in
writing to be bound by the terms and conditions herein; any other assignment shall be void. This Agreement and
any dispute arising hereunder shall be construed in accordance with the laws of the State of California
without regard to principles of conflict of laws. For the purpose of this Agreement, User consents to the personal
jurisdiction and venue of the state and federal courts located in San Bernardino Count/State of California. If any
provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall
not be affected, and this Agreement shall continue in full force and effect as if such unenforceable provision had
never constituted a part hereof, and the unenforceable provision shall be automatically amended to so as to best
accomplish the objectives of such unenforceable provision within the limits of applicable law. This Agreement
may be executed in counterparts, each of which shall be deemed an original but all of which together shall
constitute the same instrument. Any waiver of a provision of this Agreement must be in writing and signed by the
party to be charged. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the
future or any other obligation under this Agreement. This Agreement constitutes the entire agreement between
the parties related to the subject matter hereof, supersedes any prior or contemporaneous agreement between
the parties relating to the Software and shall not be changed except by written agreement signed by an officer of
Licensor.
9/30/01
(c) 2001 Judith Silver. All rights reserved.
California
San Bernardino County/California