AVANTAR, LLC SOFTWARE LICENSE AGREEMENT
READ THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT (HEREINAFTER THE "AGREEMENT") CAREFULLY. BY DOWNLOADING, INSTALLING, IMPLEMENTING OR USING THIS SOFTWARE PRODUCT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE AS ANY WRITTEN AGREEMENT NEGOTIATED AND SIGNED BY YOU AND AVANTAR, LLC (WWW.AVANTAR.US) (HEREINAFTER "AVANTAR"). IF YOU ARE ACCESSING SOFTWARE ELECTRONICALLY, INDICATE YOUR ACCEPTANCE OF THESE TERMS BY SELECTING THE "ACCEPT" (OR EQUIVALENT) BUTTON. IF YOU DO NOT AGREE TO ALL OF THE TERMS SELECT THE "DECLINE" (OR EQUIVALENT) BUTTON.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES SET FORTH HEREIN, AVANTAR AND YOU HEREBY AGREE AS FOLLOWS:
DEFINITIONS:
(a) "YOU" shall mean the individual using, implementing, downloading, or installing the underlying SOFTWARE. In the event YOU are using, implementing, downloading, or installing the underlying SOFTWARE on behalf of an ORGANIZATION, all liability for a breach of this agreement shall be the responsibility of said ORGANIZATION.
(b) "LICENSEE" shall mean YOU together with any ORGANIZATION YOU may be representing, or any related agent, employee, or representative of YOU that has downloaded, used, installed, or implemented the SOFTWARE package on YOUR behalf.
(c) "SOFTWARE" shall mean any and all computer programs produced, created, developed, or provided by Avantar, including, but not limited to, applicable programs, fonts, components, hosted services, source code, modules, corresponding documentation, updates, upgrades, or modifications thereto.
(d) "SERVER" shall mean a computer system that multiple USERS access or make use of, including but not limited to, terminal SERVERS, file SERVERS, application SERVERS or web SERVERS.
(e) "EFFECTIVE USERS" shall mean the number of USERS that are effective for SOFTWARE licensing, which is determined by the following method that returns the greatest number: (1) The number of USERS that have access to the SOFTWARE, (2) The number of computers and/or mobile devices on which the SOFTWARE is installed, or (3) the number of USERS per week that have access to programs making use of the SOFTWARE on the SERVER.
(f) "ORGANIZATION" shall mean a single company, business unit, entity or individual. In this Agreement, each subsidiary of a company or business unit with a separate Tax ID is considered a separate ORGANIZATION.
(g) "USER" shall mean a single person that is making use of the SOFTWARE.
TERMS:
1. Acknowledgement: USER acknowledges that this License Agreement is concluded between AVANTAR and the USER only, and not with Apple, and AVANTAR, not Apple, IS solely responsible for the Licensed Application and the content thereof.
2. Scope of License: The license granted to the USER for the Licensed Application is limited to a non-transferable license to use the Licensed Application on any iPhone or iPod touch that the USER owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service.
3. Maintenance and Support: Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application to the USER. Avantar will provide maintenance and support for ten (10) days to the USER, beginning on the day of download, for each application.
4. Warranty: In the event of any failure of the Licensed Application, the USER may notify Apple, and Apple may refund the purchase price for the Licensed Application to that USER according to Apple’s Terms & Conditions that the USER agreed to abide by.
5. Developer Name and Address: Please direct your questions to the following.
Mail:
Avantar Applications Support
55 N University Ave. Suite 110
Provo, Utah 84601
Email:
support@avantar.us
6. Third Party Beneficiary: USER acknowledges and agrees that Apple, and Apple’s subsidiaries, are third party beneficiaries of this License Agreement, and that, upon the USER’S acceptance of the terms and conditions of this License Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the License Agreement against the USER as a third party beneficiary thereof.
7. License Grant
In consideration for the license fee paid, and other good and valuable consideration, Avantar grants to LICENSEE only, unless otherwise limited by the license purchased or granted, the nonexclusive, nontransferable, perpetual, world-wide right to use the SOFTWARE in accordance with this Agreement and the license defined herein that LICENSEE purchases ("License"). If YOU are installing, accessing or using this SOFTWARE for YOUR employer, this Agreement also includes YOUR employer. LICENSEE may only use the SOFTWARE according to the License purchased or granted by Avantar. Avantar offers only one license type to meet the need of the USER.
A. Single USER License
The Single USER License ("SUL") allows use of the SOFTWARE for one USER in LICENSEE’S ORGANIZATION according to EFFECTIVE USERS, and is nontransferable.
1 Single USER License = 1 licensed USER
8. Registration
If LICENSEE purchases the License directly from the Apple Applications Store or iTunes, registration is automatic.
9. Copyright
By downloading, installing, using, or implementing this SOFTWARE, LICENSEE acknowledges the validity and enforceability of Avantar’s copyright in the underlying SOFTWARE and code. The SOFTWARE and the accompanying materials are licensed, not sold, to LICENSEE. Avantar maintains ownership of all copyright interests in the SOFTWARE, including any derivative works based upon the SOFTWARE. LICENSEE may not rent, lease, display, copy for commercial purposes, or distribute copies of the SOFTWARE to others except under the conditions of this Agreement. Unauthorized copying of the SOFTWARE or accompanying materials even if modified, merged, or included with other SOFTWARE, or of the written materials, is expressly forbidden. LICENSEE may be held legally responsible for any infringement of intellectual property rights that is caused or encouraged by LICENSEE’S failure to abide by the terms of this Agreement. LICENSEE may make a reasonable number of archival copies of the SOFTWARE for backup and recovery purposes. In any case, when a copy is created, any copyright notices included in the SOFTWARE must be reproduced in their entirety on the copy.
10. Indemnification
Avantar warrants to LICENSEE that Avantar is, and will continue to be, the sole owner of the SOFTWARE including all patents, copyrights or other applicable intellectual property rights in and to the SOFTWARE unless otherwise indicated in the SOFTWARE. Avantar shall defend, indemnify and hold LICENSEE harmless from any third party claims or lawsuits for intellectual property infringement for properly licensed SOFTWARE provided by Avantar. If SOFTWARE is determined to infringe, or in Avantar’s opinion is likely to become the subject of such a claim, Avantar shall, at its option, either: (a) obtain for LICENSEE the right to continue using the SOFTWARE; or (b) modify or replace the SOFTWARE to make it non-infringing. Provided, however, that in no event shall Avantar’s total liability (including attorney’s fees) under this paragraph exceed the purchase price LICENSEE pays for the License to use the SOFTWARE. Avantar shall have no liability regarding any claim arising out of: (a) SOFTWARE that is used in violation of this Agreement; (b) SOFTWARE that has been altered to be different from the purchased version, unless the infringing portion exists in the unaltered purchased version; (c) use of the SOFTWARE in combination with other products (including but not limited to third party SOFTWARE and hardware) if the infringement was caused by such use or combination where the purchased version by itself does not infringe. LICENSEE agrees to defend Avantar from and against any and all claims or lawsuits, and pay any and all damages and expenses including attorney's fees, that arise or result from the breach of the terms and conditions of this Agreement, excluding any claims and lawsuits for which Avantar is obligated to defend, indemnify and hold harmless. In the event of such a claim, Avantar shall give LICENSEE prompt written notice of any such claims, actions, demands and legal proceedings as soon as reasonably practicable. AVANTAR also reserves the right to add and/or take away functionality from any application at any time.
11. Agreement Duration and Termination
Subject to the terms and conditions of this Agreement, this Agreement begins when the SOFTWARE is paid, downloaded, installed, and used and is perpetual for the single device for which it was downloaded on unless terminated. When the Agreement begins, this Agreement shall supersede all older versions of this Agreement including any older Agreements that may be embedded in the SOFTWARE. This Agreement shall inure to the benefit of and be binding upon Avantar and LICENSEE. LICENSEE may terminate this Agreement at any time by discontinuing the use of the SOFTWARE and destroying all copies thereof. Avantar may terminate this Agreement at any time by discontinuing to support the SOFTWARE. This Agreement shall terminate upon notice from Avantar if LICENSEE fails to comply with any provision contained herein, and such failure or breach is not cured within ten (10) days of such notice. Upon termination, LICENSEE must destroy the SOFTWARE and all copies (in part and in whole, including modified copies, if any) in its possession or control. Avantar reserves the right to terminate this Agreement if the use of SOFTWARE by LICENSEE causes a loss of revenue for Avantar that exceeds one time the amount LICENSEE paid for the License. All restrictions prohibiting LICENSEE’S use of the SOFTWARE and intellectual property provisions relating to SOFTWARE to the benefit of Avantar shall survive termination of this Agreement.
12. Warranty and Limitation of Liability
Although efforts have been made to assure that the SOFTWARE is date compliant, correct, reliable, technically accurate and will perform in accordance with the documentation, the SOFTWARE is licensed to LICENSEE as is and without warranties as to performance of merchantability, search results accurateness, fitness for a particular purpose or use, or any other warranties whether expressed or implied. LICENSEE, its ORGANIZATION, and all USERS of the SOFTWARE, assume all risks when using it. To the maximum extent permitted by applicable law, in no event shall Avantar be liable for any consequential, incidental, indirect, punitive or special damages arising out of the use of or inability to use the SOFTWARE or the provision of or failure to provide support services or hosted services, or the malfunction of the USER’S device this SOFTWARE is loaded onto, even if Avantar has been advised of the possibility of such damages. In any case, Avantar's entire liability under any provision of this Agreement shall be limited to zero (0) times the amount actually paid by LICENSEE for the License. USER also agrees that Avantar can at any time choose to discontinue support and operability of SOFTWARE without refunding the initial purchase price.
13. Export Restrictions
The SOFTWARE is of U.S. origin and distribution of the SOFTWARE is subject to export control laws of the United States of America. LICENSEE agrees that it will not export or distribute the SOFTWARE, directly or indirectly, to any restricted export country, without first obtaining permission to do so as required from the appropriate U.S. governmental agency. LICENSEE bears all responsibility for export law compliance.
14. Controlling Law and Severability
This Agreement shall be governed by and construed in accordance with the laws of the United States and the state of Utah, as applied to agreements entered into and to be performed entirely within Utah between Utah residents. The courts of the state of Utah, Utah County, shall have exclusive jurisdiction and venue over any dispute, proceeding, or action arising out of or in connection with this Agreement or LICENSEE’S use of the SOFTWARE.
15. Assignment and Effect
This Agreement shall inure to the benefit of and be binding upon LICENSEE, as well as LICENSEE’S employees, employers, agents, parents, subsidiaries, representatives, and assigns.
16. All Modifications Must be in Writing
Avantar may modify, alter, or amend this Agreement at will, without notice to LICENSEE. Please refer back to Terms and Conditions on this page often to find the latest version of these terms.
17. Refund Policy
Please refer to Apple’s iTunes Terms and Conditions. For all other questions please contact us by visiting www.Avantar.us .
Copyright © 2008 Avantar, LLC. Avantar is a registered trademark of Avantar, LLC.