The following terms and conditions (“Agreement”) represent the complete agreement and understanding between you and Orographic Enterprises, Inc. dba What To Do ("What To Do") regarding the use of the What To Do’s proprietary computer software (the “Software”), and supersedes all prior agreements, oral or written.
BY CLICKING “I ACCEPT", YOU AGREE TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY.
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT COMPLETE THE SIGN-UP PROCESS AND YOU MAY NOT USE THE SOFTWARE.
1.1 Upon proper payment and acceptance of these terms, What To Do will provide by e-mail to the account designated by You a unique activation code that will permit you to use the Software in accordance with this Agreement. The activation code is personal to You and You agree not to share such code which is proprietary information of What To Do.
1.2 Use of the Software is free except for indicated paid portions where use is by pre-payment only for a specified period of time according to What To Do's then applicable periodic fee.
1.3 What To Do uses reasonable measures to protect any personally identifiable data You provide to as part of your Customer Account.
2.1 Subject to the provisions of this Agreement as well as the payment of all license fees, if any, for the term of such license, What To Do grants You and You accept a limited, personal, non-exclusive, non-transferable, non-assignable object code license to use the Software for Your internal use only on a single computer for a single end-user at any one time. You may not make the Software available over the internet or any other network. You may use for internal purposes the results of any data generated by the Software, but you may not use the Software as a service bureau or otherwise to perform services for others.
2.3 For any paid portions, Your use is time limited and ends automatically at the end of the subscription period for which you have paid. USE OF THE SOFTWARE IS ONLY FOR PERSONAL AND RECREATIONAL PURPOSES ONLY.
2.4 Except as provided in this Agreement, no license under any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights, express or implied, are granted by What To Do to You under this Agreement.
2.5 You shall not and shall not permit your affiliates or any third party to translate, reverse engineer, decompile, recompile, update, or modify all or any part of the Software or merge the Software or any portion thereof into any other software.
2.6 All patents, copyrights, trade secrets, and other proprietary rights in or related to the Software are and will remain the exclusive property of What To Do or its licensors, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Software is used or licensed. You will not take any action that jeopardizes What To Do's or its licensor's proprietary rights or acquire any right in the Software. Without limiting the foregoing, You agree not to reverse engineer, decompile or otherwise attempt to ascertain the algorithms or methods within the Software.
3. TERM OF LICENSE
Subject to the limitations contained in the Agreement, the License granted under this Agreement shall begin on the date of delivery of the Software, and shall continue for the duration of Your payment unless earlier terminated as provided in this Agreement.
4. TERMINATION OF AGREEMENT AND/OR LICENSE
4.1 What To Do shall have the right to terminate this Agreement, (a) Without notice at the time Your license payments are not current; (b) You are in arrears to What To Do for any amount after five days notice; (c) You make an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of all or any part of Your property or business; (d) You are bankrupt or insolvent or do not dismiss within five days of filing any claim thereof; or (e) You neglect or fail to perform or observe any of its obligations under this Agreement and such condition is not remedied within thirty (30) days after notice. Notwithstanding anything contained in this Agreement, What To Do shall have the right to immediately terminate this Agreement without notice if You breach Section 2, 10, or 11, or otherwise misuses the Software in contravention of this Agreement.
4.2 In the event What To Do shall be in material breach or default of any of the terms, conditions, or covenants of this Agreement, and such breach or default shall continue for a period of ninety (90) days after the receipt of Your written notice to What To Do, You shall have the right to terminate this Agreement without any charge, obligation, except as to the payment for Software and services already received and accepted by You. Any pre-paid period not utilized at the time of termination shall be refunded in whole month increments only.
5. OBLIGATIONS THAT SURVIVE TERMINATION
The parties recognize and agree that their obligations under Sections 2.6, 8, 11, 12, 14 and 22 of this Agreement survive the cancellation, termination, or expiration of this Agreement.
6. LICENSE FEES
We reserve the right to charge licensing fees at a future date.
7. TERMS OF PAYMENT
All amounts are payable in advance except as may be mutually agreed in writing. What To Do may charge You a one and one-half percent (1-1/2%) monthly finance charge to be calculated monthly with respect to all outstanding amounts not paid within thirty (30) days following the due date, but in no event shall any finance charge exceed the maximum allowed by law.
There shall be added to the charges provided for in this Agreement amounts equal to any taxes, whether federal, state, or local, however designated, that may be validly levied or based upon this Agreement or upon the Software furnished hereunder, excluding, however, taxes based on or measured by What To Do's net income. Taxes payable by You are billed as separate items on What To Do's invoices and shall not be included in What To Do's prices.
If available at the time of the license and if requested by You, What To Do shall provide, at What To Do's then existing price, internet instructional material. What To Do does not provided on-site, phone or other training except by mutual written agreement.
You shall have the right, to access at no additional change any manuals, documentation or support information that What To Do makes generally available to its customers.
11. YOUR INDEMNITY
You agree to defend What To Do, at What To Do's request, against any liability, claim, or demand against What To Do arising from Your use of the Software.
12. WARRANTY AND WARRANTY DISCLAIMER
12.1 The Software is licensed "as-is" without warranty of any type except that What To Do warrants that it has sufficient rights to grant the licenses granted in this Agreement without conflict with the rights of any third party in the United States. In the event of a breach of this warranty, as Your sole and exclusive remedy will, without in any way limiting the foregoing, in What To Do's sole discretion and at What To Do's expense, either (a) procure for You the right to continue using the item; (b) replace or modify the item so that it becomes non-infringing or (c) if neither (a) nor (b) above is practicable in What To Do's discretion, What To Do will refund to You any license fees paid by You, not to exceed twelve months of actual fees paid by You.
12.2 What To Do does not warrant that the operation of the Software will be uninterrupted or error free.
12.3 EXCEPT AS SET FORTH IN THIS SECTION 12, What To Do MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE, SOFTWARE PRODUCTS, OR SERVICES OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR USE BY YOU. WHAT TO DO FURNISHES THE ABOVE WARRANTIES IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
13. ACCEPTANCE OF SOFTWARE
The license to the Software is accepted upon the earlier of first use or express acceptance, including on-line acceptance, of this Agreement.
14. LIMITATION OF LIABILITY
14.1 WHAT TO DO SHALL NOT BE LIABLE FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR THE OPERATION OR USE OF THE SOFTWARE, SOFTWARE PRODUCTS, AND SERVICES, INCLUDING SUCH DAMAGES, WITHOUT LIMITATION, AS DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST YOU BY ANY THIRD PERSON, EVEN IF WHAT TO DO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY WHAT TO DO TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND WHAT TO DO'S REASONABLE CONTROL; OR (C) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST WHAT TO DO MORE THAN TWO YEARS AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE.
14.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, WHAT TO DO'S LIABILITIES UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED TWELVE MONTHS OF LICENSE FEES.
15. RIGHT TO MOVE
Subject to reasonable assurances by You, What To Do will issue to You upon request a temporary access code if the licensed computer is inoperative or for emergency testing purposes.
16. SOFTWARE MAINTENANCE AND ERROR CORRECTION
You will be permitted free access to all updates of the Software made generally available to customers during your subscription period. No other support or error correction is provided under this Agreement.
17. YOUR PREPARATION
The Software will only function on the a system meeting the requirements set forth at
http://www.whattodo.info/sw/systemrequirements.html. You agree to provide for Yourself, and bear the cost of, all equipment for such system requirements and all required communications costs and connections.
You may not assign or transfer Your rights, or obligations under this Agreement without the prior written consent of a What To Do.
19. AMENDMENTS, MODIFICATIONS, OR SUPPLEMENTS
What To Do may update the policies referred to in this Agreement at any time without notice.
21. COMPLIANCE WITH LAWS
You shall comply with the provision of all applicable federal, state, county, and local laws, ordinances, regulations, and codes with respect to the use of the Software and notify What To Do of any material breach thereof relating to use of the Software.
22. GOVERNING LAW
The validity, construction, interpretation, and performance of this Agreement shall be governed by and construed in accordance with the domestic laws of the state of Colorado, except as to its principals of conflicts of laws and the parties hereto irrevocably submit to the jurisdiction and venue of the state courts located in El Paso County, Colorado and the federal district court located in Denver, Colorado to resolve any disputes arising hereunder or related hereto. The prevailing party in any action shall be entitled to its reasonable attorney's fees. The Agreement is not governed by the United Nations Convention on the Contracts for the International Sale of Goods.
23. WAIVER OF BREACH
No waiver of breach or failure to exercise any option, right, or privilege under the terms of this Agreement on any occasion or occasions shall be construed to be a waiver of the same or any other option, right, or privilege on any other occasion.
24. FORCE MAJEURE
What To Do shall not be responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by causes beyond What To Do's control.
All notices, demands, or other communications herein provided to be given or that may be given by any party to the other shall be deemed to have been duly given when made by e-mail to the e-mail address provided by You and to firstname.lastname@example.org. Notice may also be given if deposited in the U.S. mail postage prepaid to the address on record for You at What To Do.
What To Do reserves the right, without prior approval from or notice to You, to make changes to the Software and to substitute Software reflecting those changes, provided the Software delivered substantially conform to the new specifications.
27. GOVERNMENTAL USE; EXPORT COMPLIANCE
If You are a government agency or are using government agency funds to purchase the license, then You agree on behalf of the agency You represent that the Software was developed at private expense and is provided with "RESTRICTED RIGHTS". Use, duplication, or disclosure is subject to restrictions as set forth in FAR 52.227-14, DFAR 252.227-7013, its successors or applicable agency rights in technical data or computer software and any similar provisions with respect to state or other non-federal government use. In the event that this License, or any part thereof, is deemed inconsistent with the minimum rights identified in the Restricted Rights provisions, the minimum rights of the applicable law shall prevail. You represent and warrant that You are not an entity or person prohibited from doing business with the United States and that Your use will be in accordance with all United States laws, including all export restrictions if used outside of the United States. You agree to provide any information reasonably requested by What To Do with respect to this Section 27.
28. ENTIRE AGREEMENT
This Agreement, the appendices, and subordinate documents referenced in this Agreement constitute the entire agreement between the parties with respect to the subject matter contained herein, superseding all previous agreements pertaining to such subject matter, and may be modified only by an amendment executed in writing by the authorized officers of both parties hereto.