F.W. Anderson & Associates, Inc (DBA Clas A Marketing and Branding,(CAMB)), the owner of the MarketingCalendarOffice.com and MyMarketingCalendarOffice.com Web sites, is willing to grant you, or, in the case that you represent a corporation or other organization, that corporation or organization (collectively and interchangeably, "Licensee" or "You") a limited, personal, non-exclusive license to use the "Software", Marketing Calendar Office, set forth on the one or more order forms, paper or electronic, You have entered into with CAMB relating to the Software (each, an "Order Form") subject to Your acceptance and agreement to be bound by the terms of this End User Software License Agreement (together with the terms and conditions of the Order Form, the "Agreement").
1. This is an agreement between Licensor and Licensee, who is being licensed to use the Marketing Calendar Office Software.
2. Licensee acknowledges that this is only a limited nonexclusive license. Licensor is and remains the owner of all titles, rights, trademarks, logos, database and interests in the Software. The Software is licensed, not sold, to You for use solely subject to the terms and conditions of this Agreement. The Software and all worldwide intellectual property and proprietary rights therein and relating thereto, are and will remain the exclusive property of CAMB or its licensors, if any.
3. This License permits Licensee to access the Web based Software on more than one computer system, via the Internet to the Host/CAMB server according to the “subscription package” the Licensee has subscribed to and understands the Software will not be used by more than the maximum number of users per the subscribed package simultaneously. An authorized ID and password must be used to access the Software. Except as expressly permitted under this Agreement, You will not, and will not allow any third party to: (a) modify, translate, adapt, alter or create derivative works from the Software; (b) merge the Software with any other software or
documentation;(c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software; (d) distribute, sublicense, rent, lease or loan the Software to any third party; or (e) use the Software for the business needs of another person or entity, including without limitation, providing outsourcing, service bureau, commercial hosting, application service
provider or on-line services to third parties. You may not remove, alter or obscure any proprietary notice that appears on the Software or on any copies made in accordance with this Agreement.
4. The Software may contain or include software code owned or provided by third-party licensors of CAMB ("Third-Party Code"). For any Third-Party Code clearly indicated to be subject to the terms of a third party software license (a "Third-Party License"), the terms of the applicable Third-Party License will apply to the Third-Party Code independent of the terms of this Agreement. Any Third Party Code not subject to a Third Party License is subject to the terms and conditions of this Agreement and the licensors of any such Third Party Code are third party beneficiaries of this Agreement. Nothing in this Agreement limits Your rights under, or grants rights to You that
supersede, the terms of any applicable Third-Party License.
5. You acknowledge, at anytime if the occasion arises, that the Software identified as a "beta" version ("Beta Software") is provided solely as a convenience for You. Beta Software may include additional features or functionality currently under development for inclusion in the Software, but is not currently supported by CAMB. You acknowledge that Beta Software will not be supported under Section 6. You covenant to treat all Beta Software as Software, including, but not limited to, the restrictions on use set forth in Section 3.
6. For one year following the Effective Date, subject to the terms and conditions of this Agreement, CAMB will provide, on a commercially reasonable basis, the following support services for the Software ("Support") via email during normal CAMB business hours(which are 8:00 AM - 5:00 PM Eastern Standard Time, Monday through Friday, excepting holidays): (1) investigation and confirmation of a report by You (submitted to CAMB via email) of a Failure (as defined below),including (i) isolation of the problem(s) causing such Failure; and (ii) within 30 days, repair or replacement, as applicable and at CAMB’s sole discretion, of the Software as necessary to cure the Failure; (2) installation assistance; (3) assistance with understanding the standard features of the Software; and (4) assistance. CAMB will use commercially reasonable efforts to respond to all support-related email within five business days of receipt of such email. A "Failure" means a failure of the Software to operate substantially in accordance with the then-current specifications for that software when the software has been accessed and used in accordance with those specifications. CAMB will have no obligation to provide Support for any Failure that: (a) is due to a breach by You of the Agreement; (b) cannot be reasonably remedied; (c)is due to use of the Software in combination with third-party products, equipment, software, or data;(d) is due to any release of the Software other than the most current release; (e) is due to any modifications to the Software not provided by CAMB; (f) has been listed as a known issue on CAMB’s web site, or (f) is caused by Your negligence, abuse, misapplication, or use of the Software. You will provide CAMB with reasonable assistance to resolve the Failure, including providing CAMB with sufficient access to and information regarding Your computing environment to enable CAMB to duplicate the Failure at issue and (as applicable) to determine that the Failure has been corrected. CAMB will have no liability for any changes required by Your hardware or software configuration which may be necessary to use the Software due to a workaround, error correction, or maintenance release. CAMB reserves the right to provide updates and upgrades for the Software to You at its
convenience. Any updates, upgrades and any other repairs, replacements or modifications to the Software made available to You will be considered part of the "Software" for purposes of this Agreement and will be subject to the terms and conditions of this Agreement applicable to the Software.
7. In consideration of the rights to the Software provided under this Agreement, You will pay CAMB the fees ("Fees") listed on the MarketingCalendarOffice.com Web site applicable to the Software for the Subscription Package you choose. Payment of the Fees must be made in U.S. dollars, and must be paid via credit card using PayPal. You grant CAMB the right to charge the credit card in the applicable Order Form for all Fees incurred under this Agreement. On the Effective Date, You will remit to CAMB an annual payment of the Fees as set forth on the Order Form based on the number of end-user licenses/Subscription Package You are purchasing. You may,
at any time during the term of the Agreement, increase the number of licenses which you have purchased upon providing written notice to CAMB, together with payment of CAMB’s then-current Fees associated with such number of additional end-user licenses. All Fees are non-refundable. Your obligation to pay Fees not subject to a reasonable dispute will be unconditional and not subject to abatement, set off or defense of any kind. Fees exclude all applicable sales, use, and other taxes, fees, duties and similar charges, and You will be responsible for payment of all such taxes (other than taxes based on CAMB’s income), fees, duties, and charges. You will be notified
via email when your one year license is nearing completion and must follow the process to renew your subscription for the following 12 months or as specified by any additional agreement with CAMB. If payment is not made to renew the license you will not have access to your data until payment is made for renewal. Data will be stored on the CAMB server for six months if you do not renew your license upon the due date.
8. Warranty and Disclaimer. CAMB DOES NOT WARRANT THAT: (A) THE OPERATION OFTHE SOFTWARE OR HARDWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT FUNCTIONS CONTAINED IN THE SOFTWARE WILL OPERATE IN COMBINATIONS OF
SOFTWARE OR HARDWARE THAT MAY BE SELECTED FOR USE BY YOU; (B) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR (C) ANY RESULTS, OUTPUT, OR DATA PROVIDED THROUGH OR GENERATED BY THE SOFTWARE WILL BE ACCURATE, UP-TO-DATE, COMPLETE OR RELIABLE. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 8, TO THE MAXIMUM EXTENT PERMITTED BY LAW, CAMB SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW OR OTHERWISE, RELATING TO THIS AGREEMENT AND THE SOFTWARE AND ANY SERVICES PROVIDED TO YOU, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
9. Notwithstanding the foregoing, LICENSOR IS NOT LIABLE TO LICENSEE FOR ANY DAMAGES, INCLUDING COMPENSATORY, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, CONNECTED WITH OR RESULTING FROM
THIS LICENSE AGREEMENT OR LICENSEE’S USE OF THIS SOFTWARE. Licensee’s urisdiction may not allow such a limitation of damages, so this limitation may not apply.
10. Indemnification. You will indemnify, defend, and hold harmless CAMB, its licensors, and each of their respective employees, officers, directors, and affiliates ("Indemnified Parties"), from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) which result from any claim or allegation against
any Indemnified Party arising from Your use of the Software or Your breach of any term of this Agreement. CAMB will provide You with notice of any such claim or allegation, and CAMB will have the right to participate in the defense of any such claim at its expense.
11. Licensor has the right to terminate this License Agreement and Licensee’s right to use this
Software upon any material breach by Licensee.
12. Confidential Information. You acknowledge that the Software contains confidential and proprietary information of CAMB, including without limitation the Source Code ,inventions, algorithms, know-how and other proprietary information contained therein (collectively,
"Confidential Information"). You agree to protect the Confidential Information with at least the same degree of care employed with respect to Your own confidential or proprietary information. You will not use the Confidential Information for any purpose other than in connection with Your use of the Software under the Agreement. Except as otherwise set forth in this Agreement, under no circumstances will You allow any third party to have access to the Software.
13. This License Agreement is the entire and exclusive agreement between Licensor and Licensee regarding this Software. This License Agreement replaces and supersedes all prior negotiations,
dealings, and agreements between Licensor and Licensee regarding this Software. You may not assign, delegate or otherwise transfer this ;Agreement or any of Your rights or obligations under
this Agreement without the prior written consent of CAMB. Unless specifically authorized in writing by CAMB, assignment of this Agreement will not release You from any prior outstanding
obligation under this Agreement.
14. This License Agreement is governed by the law of Commonwealth of Kentucky applicable to Kentucky contracts without regard to conflicts of law principles. All disputes arising under this
Agreement must be brought in the state and federal courts located in Lexington, Kentucky, as permitted by law. Each party irrevocably hereby consents to the jurisdiction and venue of any
such court in any such action or proceeding. No agency, partnership, or joint venture is created by this Agreement. The parties are and remain at all times independent contractors and not
agents or employees of the other party.
15. This License Agreement is valid without Licensor’s signature. It becomes effective upon the earlier of Licensee’s signature or Licensee’s use of the Software or clicking acceptance of this
agreement.
16. Refund Policy: Clients have 30 days to request a refund. After 30 days, you may not request a
refund.