BrandMuscle, Inc.
END USER LICENSE
IMPORTANT: READ THIS CAREFULLY. This End User License ("End User License") is a legal agreement between you and BrandMuscle, Inc. ("BrandMuscle") granting you certain rights to access and use certain modules ("Modules") of BrandMuscle’s software products (the "Software"), together with any user manuals and online help function therefore ("Documentation"), as BrandMuscle may update them from time to time. By clicking on the "Accept" button or otherwise accessing or using the Software or any Module, you agree to be bound by the terms of this End User License. If you do not agree to the terms of this End User License, click on the "Cancel" button and do not access or otherwise use the Software or any Module.
1. Authorized User. Your use of and access to the Software is subject this End User License and is granted by BrandMuscle under and subject to (a) the request to review BrandMuscle’s software products in anticipation of a potential business partnership, or (b) the Master Agreement (the "Agreement") between BrandMuscle and your employer or other legal entity on whose behalf or at whose direction you will use the Software (the "Company"). You may only use the Software if you (a) are an employee, agent or contractor of the Company, an Affiliate (e.g. franchisee, dealer or distributor), or an independent contractor providing services to the Company, such as an advertising agency, (b) have a need to access a Module of the Software, and (c) have agreed to the terms of this End User License.
2. Right to Access and Use Software. Subject to the terms of this End User License, the Agreement, and any policies and procedures agreed upon in writing between the Company and BrandMuscle, you may (a) access and use Modules of the Software as set forth in the Agreement, and (b) use the Documentation. These rights are non-transferable and non-exclusive. If you are provided access by BrandMuscle to evaluate the functionality for other reasons, including but not limited to the anticipation of a partnership between BrandMuscle and your Company, these rights, terms and conditions also apply.
3. Restrictions. You may not do any of the following yourself, or through any other person:
A) Copy, modify or create derivative works based upon the Modules, the Software or Documentation;
B) Decompile, disassemble, or reverse engineer the Modules or the Software in whole or in part;
C) Defeat, disable or circumvent any protection mechanism related to the Modules, the Software or Documentation, including without limitation any code which necessitates or solicits agreement to the End User License before use of any Modules;
D) Sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party any portion of the Modules, the Software or the Documentation to any third party other than an Authorized User under the Agreement, or, in particular, without limiting the generality of the foregoing, allow any party to use the Modules or the Software in order to provide services outside the scope of the Agreement;
E) Export any Module or the Software in violation of any laws or regulations, including U.S. Department of Commerce Export Administration regulations; or
F) Provide access to any Module or the Software to any other person, or share your user name or password ("Credentials") with any other person.
You agree to use the Modules, Software and Documentation for legitimate purposes as directed by the Company or its authorized service providers.
4. Title and Ownership. Except for the rights expressly granted above, this End User License transfers to you no right, title, or interest in any Module, the Software, the Documentation, or any copyright, patent, trademark, trade secret or other intellectual property or proprietary right in the Module, the Software or the Documentation. BrandMuscle retains sole and exclusive title to all portions of all Modules, the Software and Documentation.
5. Warranty; Limitation of Liability. BRANDMUSCLE PROVIDES VARIOUS LIMITED WARRANTIES TO THE COMPANY IN THE AGREEMENT. BRANDMUSCLE MAKES NO WARRANTY OF ANY KIND TO YOU, THE END USER. BRANDMUSCLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. BRANDMUSCLE SHALL NOT BE LIABLE TO YOU, THE END USER, FOR ANY DAMAGES OF ANY KIND, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOSS OF USE, COST OF COVER, OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BRANDMUSCLE MAKES EVERY EFFORT TO ENSURE QUALITY AND RELIABILITY. HOWEVER, BRANDMUSCLE DOES NOT MAKE ANY REPRESENTATION THAT DOWNLOADING ANY FILES FROM THIS SITE WILL NOT CAUSE INTERRUPTIONS TO THE USER’S SYSTEM NOR THAT SUCH DOWNLOADED FILES WILL BE ERROR-FREE. YOU AGREE TO PERFORM YOUR OWN VERIFICATION OF THE FILES (E.G. SCAN FILES FOR VIRUSES) AND TO DOWNLOAD SUCH FILES AT YOUR OWN RISK. BRANDMUSCLE SHALL NOT BE LIABLE FOR ERRORS, OMISSIONS, INTERRUPTIONS, DELETIONS, DEFECTS, OR FAILURES OF PERFORMANCE, COMPUTER VIRUS OR COMMUNICATION LINE FAILURES, REGARDLESS OF CAUSE, OR FOR ANY DAMAGES RESULTING THEREFROM.
6. Confidentiality. The terms and conditions of this End User License, the Agreement, and any other information designated by either BrandMuscle or the Company as "confidential" are confidential and shall not be disclosed by you, orally or in writing, to any third party without the prior written consent of BrandMuscle and the Company. All Modules, the Software and Documentation and your Credentials are confidential, and you shall protect them and any other information that BrandMuscle designates as "confidential" with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, that you utilize for your own confidential information. The Modules, the Software and the Documentation contain valuable proprietary information the unauthorized use or disclosure of which would irreparably harm BrandMuscle. Upon learning of any unauthorized possession or use of or access to any Module, the Software or your Credentials you will notify BrandMuscle immediately, will promptly furnish details of such occurrence, will assist in preventing any recurrence thereof, and will cooperate fully in any litigation or other proceedings undertaken to protect the rights of BrandMuscle.
7. Termination. This End User License shall terminate as set forth in the Agreement unless earlier terminated by BrandMuscle (a) upon notice to you, or (b) without notice, upon a breach by you of any provision of this End User License.
8. Miscellaneous Terms. This End User License shall be governed by the laws of the State of Illinois, without regard to its choice of law principles. Except as provided in the Agreement, the venue of any dispute related to this End User License or any Module or the Software shall rest exclusively in the state or federal courts located in Chicago, Illinois. All disputes shall be resolved in accordance with the dispute resolution provisions of the Agreement, which will be provided to you upon request. If any provision of this End User License is held to be unenforceable, this End User License shall be construed without such provision. The failure of BrandMuscle to exercise any of its rights shall not operate as a waiver of its right to exercise such right or any other right in the future.
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