dESCO, LLC END USER SOFTWARE LICENSE AGREEMENT

READ THESE LICENSE AGREEMENT TERMS BEFORE INSTALLING THE SOFTWARE. INSTALLING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THESE LICENSE TERMS, RETURN THE SOFTWARE (ALONG WITH ALL ASSOCIATED WRITTEN MATERIALS AND OTHER PRODUCTS AS SPECIFIED HEREIN) WITHIN THE WARRANTY PERIOD TO dESCO FOR A FULL REFUND FOR THE SOFTWARE (EXCLUDING ANY THIRD PARTY SOFTWARE).

DEFINITIONS

“dESCO” means Desco, LLC, 44 Barkley Circle, Fort Myers, Florida 33907 and its successors.

“End User” means the person or entity who lawfully purchased these licensed rights to the Software from dESCO or its authorized representative.

“Invoice”  means  the invoice(s) issued to End User by dESCO, which are incorporated by reference into this Agreement (in so far as the Software) evidencing End User’s obligation to pay associated fees for Software and/or Services.

“Services” means the applicable services as specified in the Invoice  which may include support  services, and/or other professional services.

“Software” means the set of software products developed by dESCO as reflected in the applicable Invoice, including selected modules, modifications, additions and supporting documentation provided by dESCO, regardless of the form in which the End User may use it, and regardless of any alterations made by the End User; provided, however, Third Party Software shall not construed as Software under this Agreement.

“Third Party Software” means software products not developed by dESCO that dESCO may distribute to End User, which shall be governed by either (i) the clickwrap agreement, which requires End User  to “Accept” and/or “Agree” before utilizing and/or installing such Software; (ii) a written license agreement; or (iii) the terms and conditions referenced via a universal resource locator (URL).

LICENSE

In consideration for the payment of the License Fees, as reflected in the applicable Invoice, dESCO hereby grants to End User and End User accepts, a limited nonexclusive, non-transferable license, for as long as End User complies with this Agreement to (i) install the Software on the End User’s single computer systems/network and in the quantity described as reflected in the applicable Invoice; (ii) use the Software in object-code/executable form only for the End User’s internal business needs; (iii) use the Documentation to support the use of the Software and/or Services; and (iv) make a commercially reasonable number of copies of the Software for nonproduction backup purposes.

Your rights to use Third Party Software will be governed by the license issued by the licensor of such Third Party Software.

ACCEPTANCE

This Agreement is effective when End User receives the Software.

End User specifically agrees to limit the use of the Software and/or Services to those specifically granted in this Agreement.  Without limiting the foregoing, End User specifically agrees not to (i) remove any of dESCO’s or its vendors’ copyright notices and proprietary legends, (ii) file copyright or patent applications that include the Software or any portion thereof and/or (iii) use the Software (a) to infringe on the intellectual property rights of any third party or any rights of publicity or privacy; (b) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (c) to propagate any virus, worms, Trojan horses or other programming routines intended to damage any system or data; (d) use the Software in any application that may involve risks of death, personal injury, severe property damage or environmental damage; and/or (e) attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software.

The End User understands that the Software and all Documentation are protected by copyright laws and other laws and that unauthorized reproduction of the Software and/or unauthorized transfer of any copy may be a serious crime, as well as subjecting the End User to damage claims and attorney fees. dESCO has the right to terminate the license, to trace serial numbers and to take legal action if these conditions are violated.

End User may edit, format or merge the Software into other software, provided however, that the portion included in a modified version shall remain subject to all the terms and conditions of this license. End User explicitly agrees not to sell, transmit or make available to any other party any version of the Software without the expressed written permission of dESCO.

By installing the Software you as End User are indicating your acceptance of all the terms and conditions of this Agreement without exception.

SERVICE AND SUPPORT

Services terms, including support, are limited to separate agreements and Invoice (s) that may be made between the End User and dESCO or its authorized representative and such terms are not to be considered a part of this Agreement.

TERMINATION

End User acknowledges that this Agreement may be terminated by dESCO should End User fail to comply with any provision. In the event that this Agreement is terminated, End User agrees to return to dESCO the Software, Documentation and all dESCO provided diskettes, pens, mouse pads and related items and to certify in writing that any further use of the Software has been discontinued.

dESCO has the right to terminate this Agreement immediately upon the insolvency of End User, the filing of a voluntary or involuntary petition of bankruptcy of End User, or liquidation of all or substantially all of End User’s assets.

TITLE

Title and ownership of the Software is NOT transferred to End User. End User owns the diskette(s) purchased, but dESCO continues to own the Software recorded on it and all copies of it and all related intellectual property.

LIMITED WARRANTY AND DISCLAIMER

For thirty (30) days after the Invoice date as shown in your Invoice for the Software  (“Warranty Period”), if for any reason End User is not 100% satisfied with the Software, then End User may return it, provided the End User within the Warranty Period (i) contacts dESCO to obtain a Return Merchandise Authorization number and (ii) returns to dESCO the Software, Documentation and all dESCO provided diskettes, pens, mouse pads and related items.  The End User’s sole remedy, and dESCO’s and its suppliers’ entire liability, under this Limited Warranty is that dESCO will refund the price you paid for the Software license.  This does not include a refund of any amounts paid for any Third Party Software, any Services and/or any hardware.  dESCO DOES NOT WARRANT THAT THE SOFTWARE AND/OR SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES, THAT THEY WILL PROTECT YOU AGAINST ALL POSSIBLE SECURITY THREATS (INCLUDING INTENTIONAL MISCONDUCT BY THIRD PARTIES), THAT THERE WILL BE NO MALFUNCTIONS OR OTHER ERRORS IN THE SOFTWARE CAUSED BY VIRUS, INFECTION, WORM OR SIMILAR MALICIOUS CODE NOT INTRODUCED OR DEVELOPED BY US, OR THAT THE SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS.

EXCEPT AS SPECIFIED IN THIS SECTION, THE SOFTWARE AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, dESCO SHALL HAVE NO LIABILITY FOR THE SOFTWARE AND ANY SERVICES PROVIDED IN FURTHERANCE OF THIS AGREEMENT; dESCO MAKES AND END USER RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION; AND dESCO SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE.

dESCO MAKES NO REPRESENTATIONS AS TO THE MATERIAL, WORKMANSHIP OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SOFTWARE PROVIDED HEREUNDER, NOR SHALL dESCO HAVE ANY LIABILITY IN NEGLIGENCE OR TORT WITH RESPECT TO THE SOFTWARE. END USER AGREES THAT dESCO SHALL NOT BE LIABLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES UNDER ANY CIRCUMSTANCES. THERE ARE NO WARRANTIES, WHICH EXTEND BEYOND THE DESCRIPTION OF THE FACE HEREOF.

 

LIMITATION OF LIABILITY; EXCLUSION OF CONSEQUENTIAL DAMAGES

dESCO’s MAXIMUM LIABILITY FOR ANY AND ALL CLAIMS, LOSSES AND/OR DAMAGES (IN CONTRACT, TORT, OR OTHERWISE) UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL LICENSE FEES PAID TO dESCO FOR THE SOFTWARE.

IN NO EVENT SHALL dESCO BE LIABLE TO THE END USER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE AND/OR INCIDENTAL DAMAGES, WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS AND/OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.

THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN SHALL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.  BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.

dESCO shall have no liability for any End User’s (i) improper use, operation or neglect of the Software and/or Services; (ii) unauthorized modification of the Software and/or Services or merger of the Software (in whole or part) with any other Software or equipment by End User; (iii) material breach of End User’s obligations under this Agreement; and/or (iv) use of the Software and/or Services for any purpose not set out in the Documentation and/or this Agreement.

End User agrees to permit dESCO and its representatives access to the Software so as to perform requested repair work and/or correction of any defects. End User understands that such requested repair work may require more than one attempt to correct and agrees that failure to provide dESCO access to such Software waives any and all rights End User may have against dESCO relating to such defects.

End User agrees to follow such instruction as dESCO may give to End User relating to the operation, maintenance and utilization of the Software. End User understands that the Software will only function properly if operated properly and in manner specified by dESCO. End User understands and agrees that failure to follow the instruction provided by dESCO to correct defects claimed by End User waives any and all rights End User may have against dESCO for and resulting from such defects.

GOVERNMENT END-USER NOTICE

The Software is a “Commercial Item,” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202, as applicable.  Consistent with 48 C.F.R. §§ 12.212, 227.7202-1 through 227,7202-4, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein.

GENERAL

This Agreement and all transactions contemplated by this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida, without reference and/or regard to its conflicts of laws principles.

The parties specifically agree that the U.N. Convention on the International Sale of Goods, and the Uniform Computer Information Transactions Act (“UCITA”), shall not apply to this Agreement.

All disputes arising out of or related to this Agreement shall be brought solely in the Federal District Court of the Middle District of Florida (Ft. Myers Division), or if such court lacks subject matter over the dispute, in the State courts of Florida in Lee County. The parties irrevocably submit to the personal jurisdiction of such courts and waive any venue objection to such courts in any dispute arising out of or related to this Agreement.

The rights and obligations contained in (“Termination”), (“Title”), (“Limited Warranty and Disclaimer”), (“Limitation of Liability; Exclusion of Consequential Damages”) and (“General”) shall survive any termination or expiration of this Agreement.

End User agrees that certain breaches of this Agreement by End User may result in irreparable harm to the dESCO, the extent of which would be difficult and/or impracticable to assess, and that monetary damages would not be an adequate remedy for such breach. Accordingly, End User agrees that the dESCO shall be entitled to seek immediate equitable and other provisional relief including without limitation specific performance of this Agreement and a temporary restraining order and/or preliminary and/ or permanent injunction, as a remedy for such breach in addition to any and all other remedies available at law or in equity and without prejudice to any such other remedies.

End User may not sublicense, rent, lease or lend the Software and it may not transfer any copy of the Software to another person or computer, unless End User transfers all copies, including the original, and previously advises dESCO in writing of the name and address of that person, who first must pay the then current transfer fee and agree in writing to the terms of this license in order to use the Software.

In the event of a dispute arising under this Agreement that results in litigation, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs from the non-prevailing party.

If any part of this Agreement shall be held unenforceable, the remainder of the Agreement shall nevertheless remain in full force and effect.

dESCO shall not be liable for any failure or delay in performing its obligations under this Agreement, nor for any damages suffered by the End User  by reason of such failure or delay, which is, indirectly or directly, caused by an event beyond dESCO’s control including but not limited to strikes, riots, natural catastrophes, terrorist acts, governmental intervention, or other acts of God, or any other causes beyond dESCO’s reasonable control.

This constitutes the entire Agreement between the End User and dESCO with respect to the purchase of the Software license. Other than Invoice (s), representations or statements not contained in this Agreement shall not be binding upon dESCO as a warranty or otherwise.  This Agreement shall not be modified by End User purchase orders, advertising or other representations of anyone, unless a written amendment hereto has been signed by one of dESCO’s officers.