EvREsearch - End User License Agreement

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EvREsearch LTD – END USER LICENSE AGREEMENT

BY CLICKING THE CONTINUE BUTTON OR INSTALLING OR COPYING OR USING THE SOFTWARE AND OR PRODUCTS OR CONTENTS HEREIN (THE "PRODUCTS"), THE END USER OR ENTITY THAT HAS LICENSED THE PRODUCT(S) ("LICENSEE") IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF THE END USER OR LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE ("EXIT") MUST BE SELECTED AND THE END USER OR LICENSEE MUST NOT INSTALL, USE OR COPY THE SOFTWARE OR PRODUCTS.

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GENERAL LICENSE TERMS & CONDITIONS
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1. GENERAL AGREEMENT. The "Agreement" governing Licensee's use of the Product(s) consists of these General License Terms and Conditions ("General Terms"), each set of product specific license terms and conditions which follow ("Product Terms"), and, if provided, the (i) Corporate End User Order Form and Product Schedule or (ii) Quotation and Offer form, as applicable. If more than one license agreement was provided for this Product, and the terms vary, the order of precedence of those license agreements is as follows: a signed agreement, a license agreement available for review on the EvREsearch LTD website, a printed or electronic agreement that states clearly that it supersedes other agreements, a printed agreement provided with a Product, an electronic agreement provided with a Product. The General Terms apply to all Products on the Product Schedule, and each set of Product Terms applies only to the individual Products identified in the Product Terms sheet. All Products are licensed independently of one another. As used in this Agreement, for residents of all countries, "EvREsearch" shall mean EvREsearch LTD. In this Agreement "Licensor" shall mean EvREsearch LTD except as otherwise set forth herein. If Licensee acquired the Product(s) as a bundled component of a third party product or service, then such third party shall be Licensor. Any third party software provided together with a Product with such third party's electronic or printed license agreement is included for use at Licensee's option, and any use of such software shall be governed by the third party's license agreement and not by this Agreement, except to the extent that this Agreement indicates otherwise with respect to specific PRODUCTS.

2. EDUCATIONAL USERS. If Licensee is a qualifying educational or nonprofit institution, certain EvREsearch client and server products are available for free download from the EvREsearch download site, and selected other client and server products are available at an educational discount. Qualifying educational institutions are grammar schools, junior high schools and high schools; junior colleges, colleges and universities that are accredited and issue two-year, four-year or advanced degrees; public libraries; and state departments of education. Students, faculty and staff at qualifying educational institutions are authorized to use the software products obtained through an education program, for educational purposes only. Only charitable nonprofit organizations that have been pre-approved by EvREsearch qualify for free or discounted EvREsearch products. Hospitals do not qualify for this program.

3. U.S. GOVERNMENT END USERS. The Product is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Product with only those rights set forth herein.

4. TERM AND TERMINATION. This Agreement shall remain in effect until terminated in accordance with this Section or as otherwise provided in this Agreement. Licensee may terminate this Agreement at any time by written notice to Licensor. Licensor may terminate this Agreement immediately in the event of (i) any breach of Section 8 or 10 by Licensee or (ii) a material breach by Licensee which is not cured within 30 days of written notice by Licensor. Upon termination, Licensee shall discontinue use.

5. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in the Product(s) shall remain in EvREsearch and/or its suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with EvREsearch's or its suppliers' ownership of or rights with respect to the Product(s). The Product(s) are protected by copyright and other intellectual property laws and by international treaties and by know how associated with U.S. and international patents. Title and related rights in the content accessed through the Product(s) are the property of the applicable content owner and are protected by applicable law. The license granted under this Agreement gives Licensee no rights to such content except content that is in the public domain. Any copy shall contain all notices regarding proprietary rights as contained in the Product originally delivered by Licensor.

6. RESTRICTIONS. Except as otherwise expressly permitted in this Agreement, Licensee may not: (i) modify or create any derivative works of any Product or documentation, including translation or localization (Licensee's code written to published APIs, application programming interfaces, for the Product(s) shall not be deemed derivative works); (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for any Product (except to the extent applicable laws specifically prohibit such restriction); (iii) redistribute, encumber, sell, rent, lease, sublicense, use the Products in a timesharing or service bureau arrangement, or otherwise transfer rights to any Product; (iv) copy any Product (except for an archival copy which must be stored on media other than a computer hard drive) or documentation; (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product(s); (vi) modify any header files or class libraries in any Product; (vii) create or alter tables or reports relating to the database portion of the Product (except as necessary for operating the Product); (viii) publish any results of benchmark tests run on any Product to a third party without EvREsearch's prior written consent; (ix) use the database provided for use with any Product except in conjunction with the relevant Product; or (x) use any Product on a system with more CPUs than the number licensed, by more Users than have been licensed, on more computers than the number licensed, or by more developers than the number licensed, as applicable.

7. WARRANTY. The express warranty set forth herein constitutes the only warranty with respect to the product(s). Licensor and its suppliers do not make, and hereby exclude, all other representations or warranties of any kind whether express or implied (either in fact or by operation of law) with respect to any product or test data included in any product. Licensor and its suppliers expressly disclaim all warranties of title, merchantability, fitness for a particular purpose or non-infringement of third parties' rights. Licensor and its suppliers do not warrant that the product(s) will meet licensees' requirements or will operate in the combinations which may be selected by licensee or that the operation of the product(s) will be secure, error-free or uninterrupted and licensor hereby disclaims any and all liability on account thereof. The security mechanisms implemented by the product(s) have inherent limitations, and licensee must determine that the product(s) sufficiently meet licensee's requirements. Licensor and its suppliers shall have no obligations under the warranty provisions set forth herein if licensee subjects the media to accident or abuse; alters, modifies or misuses the product(s); uses the product(s) incorporated, attached or in combination with software or on any computer system other than that for which the product is intended; or licensee violates the terms of this agreement. In the event of a breach of this warranty, and if licensee provides licensor with a written report during the warranty period, licensor will refund the amount pre-paid, if requested. This is licensee's sole and exclusive remedy for breach of any express or implied warranties hereunder. Notwithstanding the foregoing, some jurisdictions do not allow the exclusion of certain implied warranties; however, the exclusions of licensor's warranty in this limited warranty section shall apply to the fullest extent permitted by applicable law.

8. DISCLAIMER OF WARRANTY FOR SOFTWARE. Software is provided on an "as is" basis, without warranty of any kind, including without limitation the warranties that it is free of defects, merchantable, fit for a particular purpose or non-infringing. The entire risk as to the quality and performance of the software is borne by licensee. Should the software prove defective in any respect, licensee and not licensor or its suppliers or resellers assumes the entire cost of any service and repair. In addition, the security mechanisms implemented by the software have inherent limitations, and licensee must determine that the software sufficiently meets its requirements. This disclaimer of warranty constitutes an essential part of this agreement. No use of the software is authorized hereunder except under this disclaimer.

9. LIMITATION ON LIABILITY. (a) In no event will licensor or its suppliers or resellers be liable for any indirect, special, incidental or consequential damages, or any direct damages with respect solely to any database product provided with the product, including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof, and regardless of whether any claim is based upon any contract, tort or other legal or equitable theory. (b) With the exception of death or personal injury caused by the negligence of licensor to the extent applicable law prohibits such limitation, in no event will licensor or its suppliers or resellers be liable for any amounts in the aggregate in excess of the license fees received by licensor from licensee hereunder for the product giving rise to such damages, notwithstanding any failure of essential purpose of any limited remedy or invalidity of subsection (a) above. Licensee is solely responsible for any liability arising out of any content provided by licensee and/or any material to which users can link through such content. Any data included in a product upon shipment from licensor is for testing use only and licensor hereby disclaims any and all liability arising there from. The extent of licensor's liability for the limited warranty section shall be as set forth therein.

10. LICENSEE OUTSIDE THE U.S. If Licensee is located outside the U.S., then the provisions of this Section shall apply. (i) If Licensee is purchasing licenses directly from EvREsearch and if EvREsearch and Licensee are not located in the same country, then, if any applicable law requires Licensee to withhold amounts from any payments to EvREsearch hereunder Licensee shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish EvREsearch with tax receipts evidencing the payments of such amounts, and the sum payable by Licensee upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, EvREsearch receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount EvREsearch would have received and retained absent such required deduction or withholding. (ii) The parties confirm that this Agreement and all related documentation is and will be in the English language. (iii) Licensee is responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Product(s), and Licensee represents that it has complied with any regulations or registration procedures required by applicable law to make this license enforceable.

11. EXPORT CONTROL. Licensee agrees to comply with all export laws and restrictions and regulations of the U.S. Department of State, Department of Commerce or other United States or foreign agency or authority, and not to export or re-export any Product or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. Neither the Product(s) nor the underlying information or technology may be downloaded or otherwise exported or re exported (i) into (or to a national or resident of) any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the Product(s), Licensee agrees to the foregoing and represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Product(s) from the U.S.

12. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. The terms and conditions hereof shall prevail over any conflicting purchase order or other written instrument submitted by Licensee. (b) This Agreement may be amended only by a writing signed by both parties. (c) This Agreement shall be governed by the laws of the State of Ohio, U.S.A., without reference to its conflict of law provisions. (d) Unless otherwise agreed in writing, all disputes relating to this Agreement (excepting any dispute relating to intellectual property rights) shall be subject to final and binding arbitration in Franklin County, Ohio, with the losing party paying all costs of arbitration. (e) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (f) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (g) The controlling language of this Agreement is English. If Licensee has received a translation into another language, it has been provided for Licensee's convenience only. (h) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (i) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination. (j) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein without the prior express written consent of Licensor, which will not be unreasonably withheld. (k) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (l) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (m) The relationship between Licensor and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind Licensor in any way. (n) If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith. (o) The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning.

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EvREsearch PRODUCT TERMS & CONDITIONS
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1. PRODUCT AGREEMENT. The Agreement governing Licensee's use of the Product(s) identified above consists of these CORPORATE PRODUCT TERMS & CONDITIONS, the GENERAL LICENSE TERMS & CONDITIONS above and, if provided, the (i) Corporate End User Order Form and Product Schedule and (ii) the Distribution Program Agreement.

2. LICENSE GRANT. Subject to payment of applicable license fees, Licensor grants Licensee anon-exclusive and non-transferable license to use the Product(s) and accompanying documentation according to the CORPORATE PRODUCT TERMS & CONDITIONS. Licensee may not customize the Products unless Licensee has licensed the EvREsearch Client Customization Kit and then only to the extent permitted in the license agreement accompanying that product.

EvREsearch LTD
Attn: Dinsmore Agent Company
Dinsmore & Shohl LLP
191 West Nationwide Boulevard, Suite 300
Columbus, OHIO 43215 U.S.A.