Software License Agreement
Last modified: October 16, 2012
BY INSTALLING AND USING THIS SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "CANCEL" BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
. Subject to the terms of this Agreement, Whole Tomato Software, Inc. ("Whole Tomato") hereby grants you a limited, personal, nontransferable, nonsublicensable, royalty-free, nonexclusive license to use one copy of the client software product you are about to install in object code form ("Software"). You may copy the Software for archival purposes, provided any copy must contain all of the original Software's proprietary notices.
This Software is protected by both the United States copyright laws and international copyright treaty provisions. You must treat the Software like any other copyrighted material -- for example, a book, except that you may copy it onto a computer to be used and you may make archival copies of the Software for the sole purpose of backing-up our Software and protecting your investment from loss.
The Software may be installed on more than one computer provided that you are the exclusive user of the Software. As used in this context, "you" shall be defined as an individual human person.
You may not, directly or indirectly: modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), create derivative works based on, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software; or copy (except for archival purposes as set forth above), rent, lease, distribute, transfer or otherwise transfer rights to the Software; use the Software for timesharing or service bureau purposes; or remove any proprietary notices or labels on the Software.
. As between the parties, title, ownership rights, and intellectual property rights in and to the Software, and any copies or portions thereof, shall remain in Whole Tomato and its suppliers or licensors. The Software is protected by the copyright laws of the United States and international copyright treaties. Title, ownership rights, and intellectual property rights in and to any software, data, information, text, pictures, images, or other content ("Content") accessed through the Software or otherwise is the property of the applicable owner and may be protected by applicable copyright or other law. This License gives you no rights, title, or interest to Content (including without limitation Content that you create using the Software).
DATA TRANSMISSION DISCLOSURE
. This Software contains an opt-out feature to automatically check for updates by periodically contacting our web server via the Internet. No personally identifiable information is transmitted. This feature may be disabled under Options | Startup.
DISCLAIMER OF WARRANTY
. THE SOFTWARE, AND ANY SERVICES THAT YOU RECEIVE FROM WHOLE TOMATO ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND. WHOLE TOMATO HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.
LIMITATION OF LIABILITY
. You assume the entire risk as to the quality and performance of the Software. Whole Tomato assumes no liability for the cost of any service or repair if the Software is defective
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL WHOLE TOMATO OR ITS LICENSORS, SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL WHOLE TOMATO BE LIABLE FOR ANY DAMAGES IN EXCESS OF WHOLE TOMATO'S LIST PRICE FOR A LICENSE TO THE SOFTWARE, EVEN IF WHOLE TOMATO SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
. Whole Tomato may, at its sole discretion, terminate this Agreement, the license granted herein, and your right to use or access the Software at any time. On termination, you must destroy all copies of the Software.
. You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and not to export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations (including, without limitation, export or re-export to destinations prohibited either in Country Groups Q, S, W, Y or Z country specified in the then current Supplement No. 1 to Section 770 of the U.S. Export Administration Regulations (or any successor supplement or regulations), or the OFAC regulations found at 31 C.F.R. 500 et seq.). By installing or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any restricted country or on any such list.
. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California.
U.S. GOVERNMENT RESTRICTED RIGHTS
. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause in DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement.
Created and produced by Whole Tomato, Inc., 1733 Fessler St., Englewood, FL, USA, (408) 323-1590, Email