BrandMuscle END USER LICENSE
IMPORTANT: READ THIS CAREFULLY. This End User License ("End User License") is a legal agreement between you and BrandMuscle, Inc. ("BrandMuscle") granting you certain rights to access and use certain modules ("Modules") of BrandMuscle's software products (the "Software"), together with any user manuals and on-line help function therefore, as BrandMuscle may update them from time to time ("Documentation"). By clicking on the "Accept" button or otherwise accessing or using the Software or any Module, you agree to be bound by the terms of this End User License. If you do not agree to the terms of this End User License, click on the "Cancel" button and do not access or otherwise use the Software or any Module.
1. Authorized User. This End User License is granted to you ("Licensee") by BrandMuscle under and subject to a Master Agreement (the "Agreement") between BrandMuscle and your employer or other legal entity ("Company") that provides a license to access and use the Software and Documentation. You are eligible for the rights granted by this End User License only if you are authorized to access and use the Software and Documentation under the terms of the Agreement and have agreed to the terms of this End User License, as modified by BrandMuscle from time to time.
2. License Grant. Subject to the terms of this End User License, the Agreement, and any reasonable policies and procedures agreed upon in writing between Company and BrandMuscle, you may (A) access and use Modules of the Software as set forth in the Agreement, and (B) use the Documentation. This grant is nontransferable and non-exclusive.
3. License Restrictions. You may not do any of the following yourself, or
through any other person:
4. Title and Ownership. Except for the rights expressly granted above, this End User License transfers to you no right, title, or interest in any Module, the Software, the Documentation, or any copyright, patent, trademark, trade secret or other intellectual property or proprietary right in the Module, the Software or the Documentation. BrandMuscle retains sole and exclusive title to all portions of all Modules, the Software and Documentation and any copies thereof. You agree not to disclose any Module or the Software or the Documentation to anyone other than Authorized Users as defined in the Agreement. The Modules, the Software and the Documentation contain valuable proprietary information the unauthorized use or disclosure of which would irreparably harm BrandMuscle. Upon learning of any unauthorized possession or use of or access to any Module or the Software, you will notify BrandMuscle promptly, will promptly furnish details of such occurrence, will reasonably assist in preventing any recurrence thereof, and will cooperate fully in any litigation or other proceedings undertaken to protect the rights of BrandMuscle.
5. Warranty. BRANDMUSCLE PROVIDES VARIOUS LIMITED WARRANTIES TO LICENSEE AND/OR COMPANY IN THE AGREEMENT. BRANDMUSCLE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER BRANDMUSCLE NOR COMPANY SHALL BE LIABLE TO YOU, THE END USER, FOR ANY DAMAGES OF ANY KIND, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOSS OF USE, COST OF COVER, OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Confidentiality. The terms and conditions of this End User License, the Agreement, and any other information designated by either BrandMuscle or Company as "confidential" are confidential and shall not be disclosed by you, orally or in writing, to any third party without the prior written consent of BrandMuscle and Company. All Modules, the Software and Documentation are confidential, and you shall protect them and BrandMuscle's and Company's other confidential information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which you utilize for your own confidential information.
7. Termination. This End User License shall terminate as set forth in the Agreement that authorizes your use of the Software, unless earlier terminated by BrandMuscle A) upon notice to you, or B) without notice, upon a breach by you of any provision of this End User License.
8. Miscellaneous Terms. This End User License shall be governed by the laws of the State of New York, without regard to its choice of law principles. Except as provided in the Agreement, venue of any dispute related to this End User License or any Module or the Software shall rest exclusively in the state or federal courts located in Borough of Manhattan, State of New York. All disputes shall be resolved in accordance with the provisions of the Agreement. If any provision of this End User License is held to be unenforceable, this End User License shall be construed without such provision. The failure of BrandMuscle to exercise any of its rights shall not operate as a waiver of its right to exercise such right or any other right in the future.