This End Users License Agreement (the “Agreement”) is between you (the user) and
NJBSoft, LLC, an Arizona limited liability company (“NJBSoft”). The product described in Section
1 is offered to you conditioned on your acceptance of the terms and conditions contained in this
Agreement. You will be requested at the end of this Agreement to indicate your acceptance of
these terms and conditions. By signing below, you will have accepted and agreed to be bound
by these terms and conditions. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS
OF THIS AGREEMENT, YOU MUST IMMEDIATELY LOG OFF NJBSOFT’S WEBSITE AND
IMMEDIATELY RETURN ALL RELATED DOCUMENTATION WHICH YOU POSSESS TO
NJBSOFT.
1. Grant of License.
1.1 NJBSoft hereby grants to you a nonexclusive, personal right to use the NJBSoft
Planning Software (the “Software”) and associated reports and documentation (the
“Documentation”) (collectively, the Software and the Documentation are the “Product”) in
electronic format retrieved over the Internet from NJBSoft’s website with a username and
password provided by NJBSoft (“Credentials”). Your license is subject to the terms and conditions
of this Agreement and subject to timely payment of the License Fees and other charges described
below.
1.2 You shall only use the Product for your internal business purposes and subject to
the restrictions described herein. You may make copies of and modify the Documentation for
your internal business purposes, but not for resale.
2. Restrictions
Except as specifically permitted herein, you may not: network, rent, loan,
sub-license or lease the Product to others; or reverse engineer, reverse translate, decompile,
disassemble or in any manner decode the Product, except as otherwise permitted by law. You
further agree not to post or transmit any file or email which contains viruses, worms, Trojan horses
or any other damaging or destructive elements. You may not share, “lend” or allow any other
person to use your Credentials, except as authorized in writing by NJBSoft.
3. Term
The term of this Agreement is effective until terminated, as provided herein.
4. Termination
The provisions of Sections 2, 5, 7, 9-11 and 13 of this Agreement shall
survive termination of this Agreement.
5. Proprietary Rights and Confidentiality
The Product is solely owned by NJBSoft and is
protected by copyright laws. You will keep the Product confidential and will not disclose or
publish it, or any part of it, to parties other than your employees or to third parties with which
you are utilizing the Documentation or as legally required, except as specifically provided herein.
6. Updates
No Extension of Capabilities. NJBSoft may provide you with updates to the
Product. You may not develop your own applications that interoperate or integrate with the
Software. NJBSoft prices its Software, among other factors, based on capabilities that NJB expose
to you. You may not extend the Software to enable or unlock capabilities of the Software not
specifically identified by NJBSoft as forming part of the specified end user functionality.
7. Utilization of Data
You agree that NJBSoft is permitted to access and use the statistical
information generated and stored by the Software for the purposes of analyzing and compiling
industry information and trends, provided that NJBSoft maintains the confidentiality of the source
of such information and does not disclose your identity in any reports or analysis distributed to
third parties and such use does not unreasonably interrupt your use of the Software.
8. High Risk Activities
The Software is not fault tolerant and is not designed, manufactured,
or intended for use or resale as control equipment in hazardous environments requiring fail-safe
performance, such as in the operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapons systems, in which the failure
of the Software could lead directly to death, personal injury, or severe physical or environmental
damage (“High Risk Activities”). Accordingly, NJBSoft and its Suppliers specifically disclaim any
express or implied warranty of fitness for High Risk Activities.
9. Warranties
9.1 THE PRODUCTS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY
KIND. NJBSOFT FURTHER DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT. NJBSOFT MAKES NO
REPRESENTATIONS ABOUT THE SUITABILITY OR THE ACCURACY OF THE INFORMATION
CONTAINED IN THE PRODUCTS AND OTHER INFORMATION PROVIDED TO YOU BY
NJBSOFT. THE INFORMATION PROVIDED BY NJBSOFT COULD INCLUDE TECHNICAL OR
OTHER INACCURACIES OR TYPOGRAPHICAL ERRORS.
9.2 You warrant that all individuals having access to the Product will observe and
perform all the terms and conditions of this Agreement. You shall, at your own expense, promptly
enforce the restrictions in this Agreement against any person who gains access to the Product in
violation of the terms of the Agreement. You shall immediately notify NJBSoft in writing of any
misuse, misappropriation or unauthorized disclosure, display or copying of the Product that may
come to your attention.
10. Limitation of Liability
YOU USE THE SOFTWARE AND THE SERVICES AT YOUR OWN
RISK. NJBSOFT WILL NOT BE LIABLE FOR ANY LOSS IN CONNECTION TO THE USE OF, OR
INABILITY TO USE THE SOFTWARE AND THE SERVICES, INCLUDING ANY LOSS TO YOUR
DATA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT
LIMITING THE PREVIOUS SENTENCE, NJBSOFT WILL NOT BE LIABLE FOR ANY INDIRECT,
CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES
WHATSOEVER IN CONNECTION WITH THE SOFTWARE OR THE SERVICES, INCLUDING
DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL OR DATA. NO CLAIM,
REGARDLESS OF FORM, MAY BE MADE OR ACTION BROUGHT BY EITHER PARTY MORE
THAN ONE YEAR AFTER THE BASIS FOR THE CLAIM BECOMES KNOWN TO THE PARTY
ASSERTING IT. IF, DESPITE THE ABOVE LIMITATIONS, NJBSOFT BECOMES LIABLE TO YOU
IN RESPECT OF THE SOFTWARE AND THE SERVICES OR A COMBINATION OF THE
FOREGOING, THAT LIABILITY WILL BE LIMITED TO THE FEES YOU PAID TO NJBSOFT FOR
YOUR USE OF THE SOFTWARE IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO
THE LIABILITY
11. Injunctive Relief
Because of the unique nature of the Product, you understand and agree
that NJBSoft will suffer irreparable injury in the event you fail to comply with any of the terms of
this Agreement and that monetary damages may be inadequate to compensate NJBSoft for such
breach. Accordingly, you agree that NJBSoft will, in addition to any other remedies available to
it at law or in equity, be entitled to injunctive relief, without posting a bond, to enforce the terms
of this Agreement.
12. Change of Terms
We may revise this Agreement at any time, and therefore we suggest
that you check this Agreement from time to time. We may notify you of any changes at the e-mail
address associated with your account and you agree to accept email communications, links to
and/or our posting of any revised Agreement on our website, and you agree that any of these
means of our communicating a change in the Agreement constitutes adequate notice to you. Your
continued access or use of the Product indicates your agreement to be bound by any such
revisions.
13. Miscellaneous
You shall also pay all taxes and other governmental charges, however
characterized (except based on NJBSoft’s income), in connection with your licensing of the
Product. NJBSoft shall be neither in default nor liable for any failure in performance or loss or
damage under this Agreement due to any cause beyond its control. If requested by NJBSoft at
any time, you will certify under oath that you have fully and faithfully observed all of the terms
and conditions of this Agreement. At reasonable times, NJBSoft may inspect your premises and
equipment to verify that all of the terms and conditions of this Agreement are being observed.
This Agreement shall inure to the benefit of NJBSoft and its successors, administrators, heirs and
assigns. If any litigation is brought to enforce, or arises out of, the Agreement or any term, clause,
or provision hereof, the prevailing party shall be awarded its reasonable attorney’s fees together
with expenses and costs incurred with such litigation, including without limitation necessary fees,
costs, and expenses for services rendered, as well as subsequent to judgment in obtaining
execution thereof.
14. Acknowledgment of Understanding
Entire Agreement. You acknowledge that you have
read this Agreement, understand it and agree to be bound by its terms and conditions. You also
agree that this Agreement is the complete and exclusive statement of the agreement between
NJBSoft and you and supersedes all proposals, representations or prior agreements, oral or written,
and any other communications between NJBSoft and you relating to the subject matter of this
Agreement.
15. Governing Law and Venue
This Agreement shall be governed by the laws of the State of
Arizona, but not including the 1980 United Nations Convention on Contracts for International
Sale of Goods. You agree to the exclusive venue for any action under this Agreement shall be
any state or federal court in Maricopa County, Arizona. You consent to the personal jurisdiction
of the courts of such venue.