TechSmith’s Morae Manager


Company TechSmith
Product Morae (Manager)
a set (together with Recorder and Observer) for planning and analyzing usability tests with users
Date 3 May 2011

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characters 28032
non-space characters 23265
letters/numbers 22377
words 4237
complex words 859
syllables 6976
sentences 148
chars per word 5.28
syllables per word 1.65
words per sentence 28.63

Indices

Flesch reading ease score: 38.5
Automated readability index: 17.8
Flesch-Kincaid grade level: 15
Coleman-Liau index: 14.3
Gunning fog index: 19.6
SMOG index: 16.2

The EULA

THIS IS A LEGAL DOCUMENT BY AND AMONG YOU (“LICENSEE”), AND TECHSMITH

CORPORATION (VENDOR). PLEASE READ THIS AGREEMENT BEFORE USING THE

SOFTWARE. BY USING THE SOFTWARE YOU INDICATE THAT YOU HAVE READ

AND UNDERSTAND THIS AGREEMENT AND AGREE TO ACCEPT AND BE BOUND

BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT,

DO NOT ACCESS THE SOFTWARE AND PROMPTLY RETURN THE DOCUMENTATION

TO VENDOR.

SOFTWARE LICENSE

THIS SOFTWARE LICENSE (“Agreement”) is made as of the Effective Date

by and among Vendor, a Michigan corporation with offices located at 2405

Woodlake Drive, Okemos, MI  48864 and you as the party identified as

“Licensee” in this Agreement.

W I T N E S S E T H:

WHEREAS, Vendor has developed and owns a certain computer software program

described as Morae, including the component programs of the same referred

to as Morae Manager, Morae Recorder, Morae Observer (such components

individually and collectively referred to in this Agreement as the “Software”

as more specifically defined in the definition Article of this Agreement);

and

WHEREAS, Licensee desires to obtain a license to access the Software, subject

to the terms and conditions of this Agreement; and

WHEREAS, Vendor desires to grant Licensee a license to access the Software,

subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual benefits of the covenants and

restrictions set forth below, Licensee and Vendor hereby agree as follows:

ARTICLE I:  DEFINITIONS:

Section 1.01 — Recitals:  The above identification of parties and recitals

are true and correct.

Section 1.02 — Definitions:  The following definitions shall apply:

(1) Access:  The term “access” and variants thereof (including, but not

limited to, the terms “access”, “accessible” and “accessing”, in upper or

lower case) shall mean to store data in, retrieve data from or otherwise

approach or make use of (directly or indirectly) through electronic means

or otherwise.

(2) Associates:  The term “Associates” shall mean an employee of Vendor or

an independent contractor hired by Vendor.

(3) Activation: The term “activation” and variants thereof (including, but

not limited to, the terms “activate” and “activating”, in upper or lower case)

shall mean the process of entering a Software Key provided with the Software

that is communicated to a server or a vendor representative for the purposes

of accessing the Morae Manager component of the Software.

(4) Authorized Person:  The term “Authorized Person” shall mean employees

of Licensee or designated individuals authorized by Licensee to access

Confidential Information and individuals or entities that are authorized in

writing by Vendor to receive Confidential Information and who agree to

maintain the confidentiality of such Confidential Information.

(5) Cancellation Notice:  The term “Cancellation Notice” shall mean that

written notice sent by one party to this Agreement to the other party to this

Agreement seeking to cancel this Agreement because of a breach of this

Agreement by such other party.

(6) Concurrent Access:  The term “Concurrent Access” shall mean concurrent

access to the Product.

(7) Confidential Information: The term “Confidential Information” shall mean

all information concerning the business and technical plans of Vendor, the

Product and this Agreement which is disclosed by Vendor to Licensee or learned

by Licensee and which is not: (a) already known to Licensee;  (b) conveyed

to Licensee by a third party without restriction; (c) released by Vendor

without restriction; (d) independently developed by Licensee; or (e) in the

public domain.

(8) Defect:  The term “Defect” shall mean programming errors which

substantially impair the performance, utility and functionality of the

Software as represented in the Documentation.

(9) Documentation:  The term “Documentation” shall mean the Software Getting

Started Guide as provided in printed or electronic form to Licensee.

(10) Effective Date:  The term “Effective Date” shall mean the date Licensee

accesses the Product.

(11) Export Laws:  The term “Export Laws” shall mean the Export Administration

Act, 50 U.S.C. §2401 et. seq., and the Export Administration Regulations,

15 C.F.R. Parts 730-774.

(12) Government:  The term “Government” shall mean the state and federal

governments of the United States of America, including (without limitation)

any and all branches, bodies, agencies, departments, offices, entities and

corporations in connection therewith.

(13) Licensee:  The term “Licensee” shall mean the individual or entity

referenced herein as Licensee.

(14) Price Schedule:  The term “Price Schedule” shall mean the schedule of

fees and payment terms regarding access to the Software as published by Vendor

and as modified by Vendor from time to time.

(15) Product: The term “Product” shall mean the Software and the Documentation.

(16) Restatements:  The term “Restatements” shall mean Section 757 of the

Restatement of Torts, Section 39 of the Restatement (Third) of Unfair

Competition, 18 U.S.C. §1839 and Section 1 of the Uniform Trade Secrets Act.

(17) Rules:  The term “Rules” shall mean laws, rules, regulations, orders,

procedures or policies of Government or third parties as amended.

(18) Software Key: The term “Software Key” shall mean that certain unique

number assigned by Vendor to each User for purposes of activating the

Software.

(19) Software:  The term “Software” shall mean the individual and collective

components of the executable code for a certain computer software program

developed and owned by Vendor as accessed by Licensee referred to as the Morae

software program, which is comprised of the following component programs:

Morae Manager, the Morae Recorder and the Morae Observer.

(20) Term:  The term “Term” shall mean a period starting on the Effective

Date and continuing until this Agreement is terminated or cancelled as

provided under this Agreement.

(21) Unauthorized Access:  The term “Unauthorized Access” shall mean any

access to the Product except for the exclusive purposes of using the

performance, utility and functions of the Product for internal business

operation of Licensee, and training employees of Licensee in the use of the

Product.

(22) Unauthorized User:  The term “Unauthorized User” shall mean any

individual who accesses the Product except for employees of Licensee or

designated individuals authorized by licensee to access the Product using the

performance, utility and functions of the Product for internal business

operations of Licensee and training employees of Licensee in the use of the

Product.

(23) Users:  The term “Users” shall mean Authorized Persons of Licensee to

access the Product, excluding Unauthorized Users.

ARTICLE II:  SCOPE OF LICENSE:

Section 2.01 — Grant of License: Vendor hereby grants to Licensee a

non-exclusive and non-transferable license to access and use the Software

and to use the Documentation for the Term, subject to the terms and conditions

of this Agreement.  Accessing the Product shall only be by Authorized Persons

on one computer at any given time, however, the Morae Manager component of

the Software, the Morae Recorder component of the Software and the Morae

Observer component of the Software may be installed on different

computers, as long as each component is only installed on one machine at any

given time.  Licensee shall take reasonable steps and/or measures to prohibit

Concurrent Access to the Morae Manager, Morae Recorder and Morae Observer,

however, it is understood that that the component programs of the

Software may be used simultaneously under a single license.

Section 2.01(a) – Notwithstanding Section 2.01, the following uses are

permissible under the Grant of License:

1) An employee or contractor is terminated and the license will be re-used

by another employee or contractor,

2) The computer on which the license resides fails or is upgraded and the

license must be transferred to another computer,

3) The license resides on one computer, e.g., desktop PC, and must also be

used on another, e.g., a laptop, by the same employee or contractor.  There

will be no concurrent usage of the two computers.

4) Licensee is authorized to make and/or send an additional copy of the Morae

Recorder component and/or Morae Observer component to designated individuals

authorized by licensee to be installed on their computer for temporary use as

necessary for internal business purposes of Licensee. Licensee shall take

steps to ensure the Morae Recorder and Morae Observer are removed from these

applicable additional computers upon completion of the temporary business

purpose. Licensee shall take reasonable steps and/or measures to prohibit

Concurrent Access of the Morae Recorder and Morae Observer components, except

where Licensee has the proper number of licenses to allow Concurrent Access.

Section 2.02 — Unauthorized Use:  Licensee shall prevent Unauthorized Users

from accessing the Product.  Licensee shall prevent Unauthorized Access to

the Product.  Licensee shall promptly inform Vendor of any and all

Unauthorized Access (or suspected Unauthorized Access) and Unauthorized

Users (or suspected Unauthorized Users) of which Licensee has knowledge or

suspicion.  Access to the Product using third party software for the purpose

of viewing, using or disclosing the internal structure of the Product;

Concurrent Access; and modifications to the Product shall be deemed

Unauthorized Access.

Section 2.03 – Making additional Copies of the Software is strictly

prohibited, except as authorized in Section 2.01 of this agreement. Licensee

shall have a duty of care to prevent unauthorized copies of the software from

being made or distributed. The making of any additional unauthorized copies of

the Software is strictly prohibited and such restriction shall survive any

termination or cancellation of this Agreement. It is not a violation of this

provision for Licensee to make back-up copies of the Software and

Documentation for archival purposes.

Section 2.04 – Development License Restrictions – In addition to any other

restrictions or obligations otherwise set forth in this Agreement, the

restrictions contained in this Section 2.04 also apply to a licensee that

develops or intends to develop Application Software that utilizes programmatic

control features of the Morae Recorder component. In that regard, Licensee:

(i)   shall not resell Morae Recorder as part of the Application Software;

(ii)  shall take reasonable steps and/or measures to prohibit or bar

Concurrent Access of the Morae Recorder component of the Software;

(iii) shall give proper acknowledgment of the copyright of Vendor;

(iv)  shall  not be used to create a software application that competes with

or is intended to compete with, directly or indirectly, the

Software;

All other uses that fall outside the scope of this Agreement must receive the

prior written permission of TechSmith.

ARTICLE III:  ACTIVATION:

Section 3.01 – Activation:  Vendor shall assign Licensee a Software Key for

purposes of activating the Morae Manager component of the Software.  Licensee

will use the Software Key to activate the Morae Manager component of the

Software, either by communicating the Software Key to an activation server

through the Internet, or by contacting an Associate via telephone and

providing the Software Key.  Licensee shall be responsible for the

confidentiality and maintenance of the Software Key. Modification of the

Software Key shall be subject to prior written approval of Vendor. The Morae

Recorder and the Morae Observer Software components of the Software do

not require a Software Key.

ARTICLE IV:  PAYMENTS AND FEES:

Section 4.01 — Fees:  Licensee shall pay the Fee to Vendor in accordance

with the payment terms set forth in the Price Schedule.

Section 4.02 — Taxes:  Licensee shall pay any and all applicable taxes

(municipal, state and federal) which may now or hereafter be imposed on

accessing the Product by Licensee (excluding income taxes assessed against

Vendor).

ARTICLE V:  INTELLECTUAL PROPERTY:

Section 5.01 — Ownership and Title:  Vendor shall own any and all rights,

title and interests in the Product, including (without limitation) ownership

rights to any and all patents, copyrights, trademarks, and trade secrets in

connection therewith.

Section 5.02 — Confidential Information:  Licensee shall not disclose

Confidential Information except to Authorized Persons of internal use only.

Licensee shall not duplicate, use or disclose Confidential Information

except as otherwise permitted under this Agreement.  The Product shall be

deemed Confidential Information of Vendor.

Section 5.03 — Trade Secrets:  Licensee hereby acknowledges and agrees that

the Confidential Information of Vendor derives independent economic value

(actual or potential) from not being generally known to other persons who

can obtain economic value from its disclosure or use and not being readily

ascertainable by proper means by other persons who can obtain economic value

from its disclosure or use; is the subject of reasonable confidentiality

efforts by Licensee.

Section 5.04 — No Contest:  Licensee shall not contest or aid in contesting

the ownership or validity of the copyrights, trademarks, service marks, and

trade secrets of Vendor.

Section 5.05 — Reverse Engineering:  Licensee shall not reverse engineer,

decompile, disassemble or translate the Product, without the prior written

consent of Vendor.  Licensee shall not allow the Product to be reverse

engineered, decompiled, disassembled, or translated, without the prior written

consent of Vendor.

Section 5.06 — Modifications:  Licensee shall not modify the Product and

shall not allow the Product to be modified without the prior written consent

of Vendor.  Licensee shall not use the Product or any materials incident

thereto to develop computer software without the prior written consent of

Vendor.  If the Product is modified, such modifications shall be the sole

and exclusive property of Vendor and Vendor shall own any and all of the rights,

title, and interests to such modifications and any resulting computer

software, including (but not limited to) any and all copyrights, patents, and

trade secrets related thereto.

Section 5.07 — Export:  Licensee shall not export or reexport the Product

and shall not allow the Product to be exported or perform any act in violation

of any applicable law, including (without limitation) the Export Laws.  The

Product or Services shall not be used by Licensee to transfer the Data to

either a foreign national or a foreign destination in violation of any

applicable law, including (without limitation) the Export Laws.

Section 5.08 — U.S. Government Restricted Rights:  Where Licensee is the

U.S. Government or an agency or department thereof (collectively

“Government”), the Product is provided with RESTRICTED RIGHTS and use or

disclosure by the Government is subject to restrictions set forth in

subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software

clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (c)(2) of the

Commercial Computer Software Restricted Rights clause at 48 C.F.R. 52.227-19,

as applicable, which is incorporated herein by this reference.

Section 5.09 — Continuation:  The terms and provisions of this Article V

shall survive termination and cancellation of this Agreement.

ARTICLE VI:  WARRANTY:

Section 6.01 — Software Warranty:  Vendor represents and warrants that the

Software shall perform substantially as represented in the Documentation for

a period of thirty (30) days after the Effective Date.

SECTION 6.02 — EXPRESS WARRANTIES:  LICENSEE HEREBY ACKNOWLEDGES AND

AGREES THAT VENDOR (INCLUDING OFFICERS, ASSOCIATES, AGENTS AND

DIRECTORS OF VENDOR) HAS NOT MADE OR GRANTED ANY EXPRESS WARRANTIES

CONCERNING THE SERVICES AND THE PRODUCT EXCEPT FOR THE SOFTWARE

WARRANTY IN SECTION 6.01.

SECTION 6.03 — WARRANTY LIMITATION:  THE WARRANTIES SET FORTH IN SECTION

6.01 ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT

NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE

AND WARRANTIES OF MERCHANTABILITY.  THE WARRANTIES SET FORTH IN SECTION

6.01 ARE LIMITED TO THE PRODUCT AND DO NOT APPLY TO ANY THIRD PARTY

SOFTWARE OR TECHNOLOGY.  EXCEPTING THE WARRANTY SET FORTH IN SECTION

6.01, VENDOR HEREBY DISCLAIMS AND LICENSEE HEREBY WAIVES ALL WARRANTIES,

EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF

FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES OF

MERCHANTABILITY AND ALL IMPLIED WARRANTIES ARISING BY USAGE OF TRADE,

COURSE OF DEALING OR COURSE OF PERFORMANCE. VENDOR DOES NOT MAKE ANY

WARRANTY AND LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE

RESULTS OBTAINED FROM THE SUPPORT SERVICES, IF ANY.  LICENSEE HEREBY

ACKNOWLEDGES AND AGREES THAT USE OF SUPPORT SERVICES, IF ANY, SHALL BE

AT THE SOLE AND EXCLUSIVE RISK OF LICENSEE AND SUBJECT TO THE RULES,

THE ESSENTIAL PLAN STATEMENT AND THIS AGREEMENT.  VENDOR SHALL NOT

BE LIABLE UNDER ANY CIRCUMSTANCES FOR HARM OR DAMAGES RESULTING FROM

OR ARISING OUT OF LICENSEE INABILITY TO USE SUPPORT SERVICES, IF ANY, OR TO

ACCESS THE PRODUCT.

Section 6.04 — Regulations:  The Product shall not be used (directly or

indirectly) to conduct or solicit the performance of any business or activity

which is tortious or prohibited by law.  Licensee shall comply with Rules.

Section 6.05 — Force Majeure:  Vendor shall not be liable for any failure

to perform its obligations or for any failure of the Services, if any, or

so performed, because of circumstances beyond the control of Vendor.  Such

circumstances shall include (without limitation) any acts or omissions of

any government or governmental authority, declarations of government, war,

natural disaster, act of a public enemy, acts of terrorism, riot, sabotage,

labor disputes, power failure, delays in transportation or deliveries of

supplies or materials, laws, court orders, acts of God, computer failure,

network downtime, electronic mail failure, telecommunication failure,

failure of Licensee to cooperate with the reasonable requests of Vendor,

misuse of the Service by Licensee or a third party, misuse of the Product

by Licensee or a third party, breach of this Agreement by Licensee, or any

other events reasonably beyond the control of Vendor.

Section 6.06  — Continuation:  The terms and conditions of this Articles

VI shall survive the termination or cancellation of this Agreement.

ARTICLE VII:  INDEMNIFICATION:

Section 7.01 — Limitation of Damages:  Vendor shall not be liable for any

lost profits or consequential, exemplary, incidental or punitive damages

under this Agreement (including, without limitation, in connection with  (i)

use, performance or operation of the Product; and (ii) loss of Data),

regardless of the form of action, whether in contract or in tort, including

negligence, regardless of whether Vendor has been advised of the possibility

of such damages in advance or whether such damages are reasonably

foreseeable.

SECTION 7.02 — LIMITATION OF LIABILITY:  THE LIABILITY OF VENDOR FOR ANY

REASON AND FOR ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THIS

AGREEMENT, THE PRODUCT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN

CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL NOT EXCEED THE TOTAL

AMOUNT OF MONEY PAID BY LICENSEE TO VENDOR WITHIN THE NEXT PRECEDING

TWELVE MONTHS FROM THE DATE WHICH SUCH CLAIMED DAMAGE OR INJURY AROSE.

Section 7.03 — Vendor Indemnification:  Licensee shall release, indemnify,

defend and hold harmless Vendor (including officers, directors, agents, and

Associates of Vendor), Vendor subsidiaries, Vendor affiliates and Vendor

suppliers and distributors, from and against any and all losses, costs,

claims, suits, obligations, demands, damages, liabilities, expenses and

reasonable attorney and paralegal fees on account thereof resulting from or

in connection with (i) access to the Product by Licensee (including, without

limitation, any claim regarding use of the Product by Licensee in an

infringing manner or third parties for breach of warranty, libel, slander,

invasion of privacy or false advertising); (ii) the performance of the

Product (iii) the Borrower Services; (iv) Licensee failure to comply with

the Rules or Licensee breach of the Rules; (v) the acts (or any failure to

act) of Licensee hereunder; or (vi) any breach by Licensee of the obligations

of Licensee hereunder.  This Section 7.01, 7.02, and 7.03 shall survive

termination and cancellation of this Agreement.  Licensee hereby accepts

responsibility for, and shall be liable for, all access to the Software and

use of Vendor Services in connection with the Password.

Section 7.04 — Licensee Indemnification:  If a third party receives a

judgment from a court of competent jurisdiction upholding claims that the

Product violates trade secrets, proprietary information, trademark,

copyright or any patent rights of such third party, Vendor shall perform one

or more of the following actions (as determined by Vendor) within one year

of the date of judgment in favor of such third party’s claim is rendered by

a court of competent jurisdiction:

(1)           Replacement:  Replace the Product by delivering to Licensee a

non-infringing Software product or Documentation (as the case may be) of

substantially equivalent functional and performance capability;

(2)           Modification:  Modify the Software or the Documentation (as the case

may be) to avoid the infringement without substantially eliminating the

functional and performance capabilities of the Product as described in the

Documentation;

(3)           Obtain License:  Obtain a license for use of the Software or the

Documentation from the third party claiming infringement for use of the same

by Licensee.

The remedies set forth herein shall be the sole and exclusive remedies of

Licensee for any and all claims of indemnification under this Section 7.04.

ARTICLE VIII:  TERMINATION:

Section 8.01 — Termination Limitations:  This Agreement shall only be

terminated or canceled as provided under this Article VIII.  This Agreement

shall be valid for the Term.  Licensee may terminate this Agreement for any

reason upon providing thirty (30) days advance written notice of termination

to Vendor.

Section 8.02 — Cancellation:  If a party violates its obligations under this

Agreement, the other party may cancel this Agreement by sending Cancellation

Notice describing the noncompliance to the noncomplying party. Upon receiving

Cancellation Notice describing the noncompliance, the noncomplying party shall

have thirty (30) days from the date of such notice to cure any such

noncompliance.  If such noncompliance is not cured within the required thirty

day period, the party providing Cancellation Notice shall have the right to

cancel this Agreement as of the thirty-first (31st) day after the date of the

Cancellation Notice.

Section 8.03 — Access to the Product:  Upon termination or cancellation of

this Agreement, Licensee shall cease accessing the Product, and provide

Vendor with a certificate of compliance with this Section 8.03 signed by an

authorized representative of Licensee.

ARTICLE IX:  MISCELLANEOUS:

Section 9.01 — Assignments:  All assignments of rights under this Agreement

by Licensee without the prior written consent of Vendor shall be void.

Section 9.02 — Entire Agreement: This Agreement contains the entire

understanding of the parties and supersedes previous verbal and written

agreements between the parties concerning the subject matter herein.

Section 9.03 — Amendments and Modifications:  Vendor may modify this

Agreement from time to time in the exclusive discretion of Vendor.  Such

modifications shall be deemed accepted and approved by Licensee, shall apply

to the Product, the services, if any,  and shall be binding upon Licensee

upon notice to Licensee pursuant to Section 9.08.

Section 9.04 — Severability:  If a provision of this Agreement is rendered

invalid, the remaining provisions shall remain in full force and effect.

Section 9.05 — Captions:  The headings and captions of this Agreement are

inserted for reference convenience and do not define, limit or describe the

scope or intent of this Agreement or any particular section, paragraph or

provision.  Pronouns and nouns shall refer to the masculine, feminine, neuter,

singular or plural as the context shall require.

Section 9.06 — Public Announcement:  All public announcements of the

relationship of Vendor and Licensee under this Agreement shall be subject

to the prior written approval of Vendor.

Section 9.07 — Governing Law: This Agreement shall be governed by the laws

of the State of Michigan without regard to any rules of conflict or choice

of laws which require the application of laws of another jurisdiction, and

venue shall be Ingham County  and the State of Michigan.

Section 9.08 — Notice:  All notices shall be in writing.  Notices to Vendor

shall be deemed delivered when delivered by commercial overnight delivery

service, Certified or Registered Mail – Return Receipt Requested – or by hand

to the address set forth below for Vendor in this Agreement.  Notices to

Licensee shall be deemed delivered when delivered electronically, by

commercial overnight delivery services, by Certified or Registered Mail –

Return Receipt Requested – or by hand to the address provided by Licensee

upon registering the Product Agreement .  Notices shall be deemed given on

the date notice is delivered electronically (in case of notices delivered

to Licensee) or on the date of receipt – as evidenced in the case of Certified

or Registered Mail by Return Receipt.  Notices delivered to Licensee

electronically (including, without limitation, electronic mail) shall be

deemed written notices.

Vendor Address

TechSmith Corporation

2405 Woodlake Drive

Okemos, MI  48864

Section 9.09 — Waiver: Waiver of breach of this Agreement shall not

constitute waiver of another breach. Failing to enforce a provision of this

Agreement shall not constitute a waiver or create an estoppel from enforcing

such provision. Any waiver of a provision of this Agreement shall not be

binding unless such waiver is in writing and signed by the party waiving such

provision.

Section 9.10 — Employee Pirating:  Licensee shall not induce or solicit

(directly or indirectly) any Associate to leave the employment of Vendor or

engage the services of an Associate without the prior written consent of

Vendor.

Section 9.11 — Relationship of the Parties:  It is agreed that the

relationship of the parties is primarily that of licensee and licensor.

Nothing herein shall be construed as creating a partnership, an employment

relationship, or an agency relationship between the parties, or as

authorizing either party to act as agent for the other.  Each party shall

maintain its separate identity.

Section 9.12 — Litigation Expense:  In the event of litigation arising out

of this Agreement, each party shall pay its own costs and expenses of

litigation or arbitration (excluding fees and expenses of arbitrators and

administrative fees and expenses of arbitration).

Section 9.13 — Equitable Remedies:  The parties hereby acknowledge that

damages at law may be an inadequate remedy for Vendor.  In addition to other

rights which may be available, Vendor shall have the right of specific

performance, injunction or other equitable remedy (including, but not

limited to, the right to such equitable remedies prior to or pending

arbitration) in the event of a breach or threatened breach of this Agreement

by Licensee.

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