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END USER LICENSE AGREEMENT DTSMS
This End User License Agreement ("License”) is a contract between you, the individual installing, accessing or commencing the use of the Drug Testing Software Management Suite® products, materials, and/or services (“Licensee”), and CQube Data Systems. ("Licensor"), and governs the use of the DTSMS Product. The License granted hereunder is conditioned upon Licensee’s acceptance of the terms set forth herein.
“Software” means language learning software products, any third party software, online or web-based functionality, updates or upgrades licensed by Licensor to Licensee pursuant to this License.
“DTSMS Product” means the DTSMS Software, access to a Licensor website, and any related products, materials, services, and documentation (together with any updates to, or new releases of, the foregoing that are made available to Licensee by Licensor) licensed by Licensor to Licensee pursuant to this License.
IMPORTANT NOTICE ON LICENSE-- PLEASE REVIEW CAREFULLY
If Licensee does not accept the terms of this License, Licensee must immediately return any media and materials of the DTSMS Product that Licensee may have received.
1. LICENSE, INSTALLATION AND USE: If Licensee accepts this License, and as long as Licensee complies with the terms of this License, Licensor grants Licensee a non-exclusive and nontransferable license to use the DTSMS Product installed on any Licensee hard drive or other storage device for demonstration and evaluation purposes only, subject to the limitations and restrictions set forth in this License. Licensor makes no guarantee of access to the DTSMS Product, and may terminate access without warning.
2. TRANSFER: Licensee may not sell, rent, lease, loan or sublicense the DTSMS Product.
3. LIMITATIONS ON USE: Licensee agrees not to, and not to permit others to, directly or indirectly (a) reverse assemble, reverse compile, or otherwise reverse engineer or attempt to derive the source code of all or any part of the Software, (b) copy, modify, translate, alter, change, or collect information that can be used to create derivative works of all or any part of the DTSMS Product, (c) download, copy or collect information that could be used to copy all or any part of the DTSMS Product, or access or use all or any part of the DTSMS Product for any purpose other than for the evaluation and demonstration of the DTSMS Product.
4. OWNERSHIP OF INTELLECTUAL PROPERTY: Licensor reserves all rights in the DTSMS Product not expressly granted to Licensee in this License. Licensee acknowledges and agrees that Licensor or its third-party licensors own all rights, title and interest in and to the DTSMS Product (including all software, code, interfaces, text, photographs, graphics, therein and any related user guides and documentation), the trademark CQube Data Systems, the URLs, and other marks related to Licensor’s products and URLs such as www.irandomdrugtresting.com, www.dtsms.com and the trade dress, and look and feel of the DTSMS Product, all of which are covered by various protections including, without limitation, copyright, trademark, and trade secrecy law. If Licensee suggests new features or functionality that Licensor, in its sole discretion, adopts for the DTSMS Product, such new features or functionality will be the sole and exclusive property of Licensor and any and all claims of Licensee as to the same are hereby waived and released. Licensor reserves the right, in its sole discretion and without incurring any liability to Licensee, to update, improve, replace, modify or alter the specifications for and functionality of all or any part of the DTSMS Product from time to time.
5. DISCLAIMER OF WARRANTIES: LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE DTSMS PRODUCT IS AT LICESEE’S SOLE RISK. THE DTSMS PRODUCT AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS", WITHOUT WARRANTIES OR PROMISES, WHETHER EXPRESS OR IMPLIED, OR BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE. THE ENTIRE RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT OF SUCH DTSMS PRODUCT (IF ANY) SHALL BE WITH LICENSEE. THERE IS NO REPRESENTATION OR WARRANTY HEREIN AGAINST INTERFERENCE WITH LICENSEE’S ENJOYMENT OR AGAINST INFRINGEMENT. LICENSOR AND ITS THIRD PARTY LICENSORS DISCLAIM ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE DTSMS PRODUCT, THIRD PARTY SOFTWARE AND ANY SERVICES PROVIDED HEREUNDER, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, OR THAT LICENSEE’S USE OF THE DTSMS PRODUCT WILL BE UNINTERUPTED, VIRUS-FREE, OR ERROR-FREE. LICENSEE ACKNOWLEDGES THAT NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES ARE MADE BY ANY THIRD PARTY LICENSORS HEREIN.
6. EXCLUSIVE REMEDIES: ANY LIABILITY OF LICENSOR FOR A DEFECTIVE COPY OF THE DTSMS PRODUCT WILL BE LIMITED EXCLUSIVELY TO REPLACEMENT OF LICENSEE’S COPY OF THE DTSMS PRODUCT WITH ANOTHER COPY.
7. LIMITATIONS OF LIABILITY: IN NO EVENT WILL LICENSOR OR ITS THIRD PARTY LICENSORS OR ANY OTHER PERSON OR ENTITY BE LIABLE TO LICENSEE FOR (a) ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING ANY LOSSES RELATING TO LICENSEE, OR LICENSEE’S BUSINESS, SUCH AS LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION, OR LOST SAVINGS, EVEN IF LICENSOR OR ITS THIRD PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY CLAIM BY ANY THIRD PARTY. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, SO THE FOREGOING LIMITATIONS MAY NOT APPLY. IF LICENSEE COULD HAVE AVOIDED DAMAGES BY TAKING REASONABLE CARE, NEITHER LICENSOR NOR ITS THIRD PARTY LICENSORS WILL BE LIABLE FOR SUCH LOSSES. IN NO EVENT SHALL LICENSOR OR ITS THIRD PARTY LICENSORS’ TOTAL LIABILITY FOR ALL DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EXCEED THE PURCHASE PRICE OF THE DTSMS PRODUCT.
8. TERMINATION AND SURVIVAL:
A. This License is effective until terminated. By installing and running the program, Licensee authorizes DTSMS to immediately terminate Licensee’s rights, without notice, under this License, if Licensee fails to comply with the terms of this License. Upon termination of this License, Licensee must immediately cease all use of and destroy all copies of the DTSMS Product. Licensor may require Licensee to certify in writing that Licensee has complied with this requirement.
B. The provisions of Sections 4, 5, 7, 8, 9, 10, 11 and 12 shall survive the termination of this License for any reason, but this sentence shall not imply or create any continued right to use DTSMS Products after termination of this License.
9. GOVERNING LAW AND FORUM:
A. This License will be governed in all respects, by and construed in accordance with the laws of the State of Tennessee, United States, without reference to its principles relating to conflicts of law. Licensor and Licensee agree that any action arising out of or related to this License must be brought exclusively in a United States state or Federal court in the Commonwealth of Virginia. Licensor and Licensee consent to the personal jurisdiction of the State of Tennessee and acknowledge that venue is proper in any United States state or Federal court in the State of Tennessee. Licensee and Licensor each waive any objection it has or may have in the future with respect to the foregoing.
B. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
C. Notwithstanding the above, Licensor shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Licensee in the event that, in the opinion of Licensor, such action is necessary or desirable.
10. ENTIRE AGREEMENT, TRANSLATION, ASSIGNMENT:
A. Except as expressly provided herein, this License constitutes the entire agreement between the parties with respect to the use of the DTSMS Product and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License, or action, or delay, will be binding unless in writing and signed by Licensor.
B. In the event of a dispute between the English and any translated version, the English version of this License shall prevail.
C. Licensor may assign this License, in whole or in part, at any time with or without notice to Licensee. Licensee may not assign, delegate or otherwise transfer this License, or assign, transfer or sublicense any rights in the DTSMS Product.
11. SEVERABILITY: All provisions of this License apply to the maximum extent permitted by applicable law. If any part of this License is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this License will continue in effect.
12. EXPORT: Licensee acknowledges that the DTSMS Products are subject to U.S. export jurisdiction. Licensee agrees to comply with all applicable international and national laws that apply to the DTSMS Product, including the U.S. Export Administration Regulations and Office of Foreign Assets Control Regulations, as well as end-user, end-use, and destination restrictions issued by United States and other governments.
13. FORCE MAJEURE: No failure or omission by either party to carry out or observe any of the terms and conditions of this License (other than payment obligations) shall give rise to any claim against such party or be deemed a breach of this License if such failure or omission arises from an act of God or any other force majeure, an act of any government, or any other cause beyond the reasonable control of the affected party.
14. WAIVER: Failure by either Licensee or Licensor to insist upon strict compliance with any of the terms, covenants, or conditions of this License shall not be deemed a waiver of that term, covenant, or condition or of any other term, covenant, or condition of this License. Any waiver of relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other time.