By proceeding you are agreeing to be bound by all of the terms and conditions of this Agreement.
- Limited License: Subject to the terms and conditions of this Agreement and conditioned on your purchase of the applicable subscription, you are granted a non-exclusive, non-transferable limited, revocable license ('License') to install and use the applicable components of the Shafer Systems Notate applications and services: in machine-readable form, together with accompanying documentation (including all copies thereof, the 'Software'). No license is granted in the source code of the Software. Shafer Systems grants licensee and licensee affiliates the right to deploy and use software and services on a worldwide basis.
- User Licensing: Licenses control the number of devices that your organization can activate with Notate. Notate is licensed as a user-based license. User-based licenses cannot be shared between users. Any user using Notate on any platform must be licensed. A "user", in the context of a "user-based license", is a unique digital identifier (for example, a corporate email address). Each user may access the Notate software application on up to five different devices, including Notate for iOS, Android, Mac, and Windows, using this unique digital identifier. A user will be considered "provisioned' where the user is assigned the ability to access Notate software. Provisioned users will be counted to determine whether a customer has exceeded its licensed usage of the Notate software applications pursuant to an accepted Notate order.
- Intellectual Property: The Software is protected by copyright laws, international copyright, patents, trade secrets and other intellectual property rights. As between you and Shafer Systems LLC, Shafer Systems shall retain all right, title, interest, ownership and intellectual property rights in and to the Software, all current and future enhancements, modifications, revisions, new releases and updates thereof and any derivative works based thereon and all documentation thereto. The License confers no title or ownership in the Software and is not a sale of any rights in the Software. The License does not grant you any right to any enhancement or update to the Software other than as provided in Paragraph f. below. Shafer Systems reserves any and all rights not expressly granted to you. All right, title and interest in any output or work product created by you using the Software will be owned and retained by you.
- Restrictions: You will not remove or alter any copyright notice or any other notices that appear on the Software. You shall not (and shall not allow any third party to): (i) modify or create derivative works of any Software without the express written consent of Shafer Systems; (ii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Software (except to the extent that applicable law prohibits reverse engineering restrictions), (iii) provide, lease, lend, sublicense, use for timesharing information processing, outsourcing, or service bureau purposes or otherwise use or allow the use of the Software for the benefit of any third party (including by way of multiplexing or pooling) other than expressly permitted by Shafer Systems in writing, (iv) disclose the results of any benchmark testing, technical results or other performance data relating to the Software without Shafer Systems prior written consent or (v) use any Software, or allow the transfer, transmission, export, or re-export of any Software or portion thereof in violation of any export control laws or regulations, or in violation of any laws or regulations governing you or your business. If you are an entity, you agree to be responsible for the compliance of each of your employees, contractors and agents with the terms and conditions hereof.
- You agree to indemnify, hold harmless and defend Shafer Systems and its licensors, and their respective officers, directors, members, employees, affiliates, shareholders, agents, successors, representatives, and assigns from and against any claims or suits, including reasonable attorneys' fees and expenses, which arise or result from your use of the Software, your breach of any terms and conditions of this Agreement, or your use of the Software in violation of any applicable by (or knowingly and actively assisted by) you.
- Shafer Systems agrees to indemnify, hold harmless and defend you from and against any claims or suits, including reasonable attorneys' fees and expenses, which arise or result from claim that your use of the Software infringes or violates any copyright or patent. If a final injunction is obtained against your use of the Software by reason of such infringement, or if in Shafer Systems opinion the Software is likely to become the subject of a claim for such infringement, Shafer Systems shall, at its sole option and expense: (i) procure for you the right to continue using the Software in the manner permitted hereunder; (ii) replace or modify the Software so that it becomes non-infringing, or (iii), if (i) and (ii) are not feasible, terminate this Agreement and refund to you on a pro rata basis any prepaid license fees paid hereunder. The foregoing remedies shall be your sole and exclusive remedies in the event of a successful claim of infringement. Shafer Systems shall have no liability to you under hereunder if any infringement is based upon your use of the Software in combination with any software not furnished by Shafer Systems, if the Software is used in a manner for which it is not designed or permitted, or if the infringement is based upon modifications of the Software by you.
- The foregoing indemnification by each party hereto shall be subject to the following: (1) the indemnified party promptly notifies the other party in writing of the claim; (2) the indemnifying party has sole control of the defense and all related settlement negotiations with respect to the claim, provided, however, that the indemnified party has the right, but not the obligation, to participate at its expense in the defense of any such claim or action through counsel of its own choosing; and (3) the indemnified party cooperates fully to the extent necessary, and executes all documents necessary for the defense of such claim.
- Support and Transfers: For so long as you have active license, i.e., have a current, paid-up subscription for use of the Software, Shafer Systems will provide you with: (i) all major and minor updates to the Software generally released by Shafer Systems to its other licensees, (ii) end-user support through Shafer Systems support portal, and (iii) the ability to transfer licenses to future versions of the Software and between users.
- No Warranties: SHAFER SYSTEMS DOES NOT WARRANT THAT THE SOFTWARE IS ERROR OR BUG FREE OR UNINTERRUPTED, OR THAT ALL ERRORS OR BUGS CAN OR WILL BE CORRECTED. THE SOFTWARE IS PROVIDED 'AS IS' AND SHAFER SYSTEMS DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, DESIGN OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR WARRANTIES CONCERNING THE NON INFRINGEMENT OF THIRD PARTY RIGHTS. THE APPLICABLE LAWS OF SOME STATES MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS IN CONTRACTS WITH CONSUMERS AND THEREFORE THESE EXCLUSIONS MAY NOT APPLY TO YOU AND IN WHICH CASE THIS AGREEMENT DOES NOT AFFECT YOUR STATUTORY RIGHTS.
- Liability Limitation: OTHER THAN LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SHAFER SYSTEMS NEGLIGENCE OR WILLFUL MISCONDUCT, OR CLAIMS RELATED TO BREACH OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS ,SHAFER SYSTEMS AND ITS LICENSORS, YOU SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY CLAIMS ARISING FROM OR RELATED TO USE OF THE SOFTWARE, (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND, EVEN IF SHAFER SYSTEMS OR YOU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (IV) FOR LOSS OF PROFITS, INTERRUPTION OF USE OR BUSINESS, OR LOSS OR CORRUPTION OF DATA. IN NO EVENT SHALL SHAFER SYSTEMS OR YOUR AGGREGATE LIABILITY ARISING OUT OF OR BASED UPON THIS AGREEMENT REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, INCLUDING WITHOUT LIMITATION, ANY ACTION IN TORT OR CONTRACT, EXCEED THE FEES PAID TO SHAFER SYSTEMS PURSUANT TO THIS AGREEMENT OR THE APPLICABLE SUBSCRIPTION FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
- Expiration/Termination: The License is effective until expired or terminated. The License shall expire automatically upon the expiration of applicable Additional Documentation. The License shall terminate immediately with or without notice from Shafer Systems if you fail to comply with any provision of this Agreement or upon a breach of this Agreement by you (including, without limitation, breach for nonpayment, if applicable). You may terminate the License earlier at any time. The remaining terms and conditions of this Agreement shall survive the termination or expiration of the License.
- Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas in the United States of America. No third party is authorized to modify this Agreement or to make any warranties, representations or promises which are different from those set forth in this Agreement without express written permission from Shafer Systems. If any of the provisions of this Agreement are held to be in violation of applicable law, void, or unenforceable in any court of competent and appropriate jurisdiction, then such provisions are herewith waived to the extent necessary for this Agreement to be otherwise enforceable in such jurisdiction. No term or provision hereof shall be deemed waived or any breach excused, unless such waiver or consent shall be in writing and signed by the party claimed by the other to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. None of the rights granted hereunder may be assigned, sold, or otherwise transferred by you without the prior written consent of Shafer Systems. This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein and supersedes all previous negotiations or proposals. Any purchase order or similar document, which may be issued by you in connection with this Agreement does not modify this Agreement.