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| This is a legal agreement
(“Agreement”) between you (either an individual or an
entity), the end user (“Company”), and Tekcomp
Corporation (“Tekcomp”). BY USING THE APPLICATION (AS
DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS OF
THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS
AGREEMENT, DO NOT USE THE SERVICE.
NOTE: if you have entered into a written
agreement with Tekcomp for the use of the application,
then the terms of that written agreement rather than the
terms of this evaluation agreement govern your use of
the Service. If you are using the Application in any way,
and you have not entered into a written agreement with
Tekcomp for the use of the Service, then the terms of
this Agreement apply to you.
TERM AND TERMINATION. This
Agreement will become effective on the day accepted by
Company and will continue in full force. This Agreement
may be terminated immediately for any reason upon notice
by Tekcomp.
Upon termination or expiration of this Agreement all rights
granted to Company hereunder will automatically
terminate and Company will cease to use the Service and
all intellectual property of Tekcomp. Remedies.
Company acknowledges that monetary damages may not be a
sufficient remedy for breaches of this Agreement and
that Tekcomp will be entitled, without waiving any
other rights or remedies, to injunctive or equitable
relief as may be deemed proper by a court of competent
jurisdiction in the event of a breach. COMPANY
INDEMNIFICATION. Company agrees to indemnify and hold
harmless Tekcomp for any claims, losses or damages
(including reasonable attorney's fees and costs) from
any third party claims arising from Company’s use of the
Service. LIMITATION OF LIABILITIES AND DISCLAIMER
Limitation of Liabilities. COMPANY AGREES TEKCOMP WILL
NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT, ECONOMIC OR PUNITIVE DAMAGES WHATSOEVER
(INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF
BUSINESS OR PERSONAL PROFITS, BUSINESS INTERRUPTION,
LOSS OF BUSINESS OR PERSONAL OR CONFIDENTIAL
INFORMATION, OR ANY OTHER PECUNIARY LOSS, DAMAGES FOR
LOSS OF PRIVACY, OR FOR FAILURE TO MEET ANY DUTY,
INCLUDING ANY DUTY OF GOOD FAITH, OR TO EXERCISE
COMMERCIALLY REASONABLE CARE OR FOR NEGLIGENCE) ARISING
OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY
TO USE THE SERVICE, EVEN IF TEKCOMP HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY FURTHER
AGREES THAT TEKCOMP’S AGGREGATE LIABILITY TO COMPANY
FOR ANY AND ALL CLAIMS, ACTIONS AND/OR OMISSIONS ARISING
FROM OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $5.00.
THESE LIMITATIONS WILL BE EFFECTIVE EVEN IF ANY REMEDY
FAILS OF ITS ESSENTIAL PURPOSE. Disclaimer of
Warranties. THE APPLICATION IS PROVIDED “AS IS” WITHOUT
WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, ANY AND ALL WARRANTIES OF ANY KIND WHATSOEVER,
INCLUDING IMPLIED OR STATUTORY WARRANTIES, INCLUDING BUT
NOT LIMITED TO THOSE OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, ACCURACY
OR COMPLETENESS OF RESPONSES, RESULTS, REASONABLE CARE
OR WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, OR OF A LACK
OF VIRUSES, ALL WITH REGARD TO SERVICE, ARE EXPRESSLY
EXCLUDED. TEKCOMP MAKES NO WARRANTY THAT THE APPLICATION
WILL OPERATE PROPERLY. GENERAL TERMS Governing Law /
Jurisdiction. This Agreement must be construed and
controlled by the substantive laws of the State of
Washington and Company consents to exclusive
jurisdiction and venue in the federal courts sitting in
Broward County, Florida, unless no federal subject
matter jurisdiction exists, in which case Company
consents to exclusive jurisdiction and venue in the
Superior Court of Broward County, Florida. Company
waives all defenses of lack of personal jurisdiction and
forum non conveniens. Process may be served on either
Party in the manner authorized by applicable law or
court rule. In any action to enforce any right or remedy
under this Agreement or to interpret any provision of
this Agreement, the prevailing Party will be entitled to
recover its reasonable attorneys’ fees, costs, and other
expenses. No Third Party Beneficiaries. The
provisions of this Agreement are for the benefit of the
Parties and not for any other person or entity.
Severability. If any provision of this Agreement is held
by a court of competent jurisdiction to be illegal,
invalid or unenforceable, the remaining provisions will
remain in full force and effect. The Parties intend that
the provisions of this Agreement be enforced to the
fullest extent permitted by applicable law. Accordingly,
the Parties agree that if any provisions are deemed not
enforceable, they will be deemed modified to the extent
necessary to make them enforceable. Freedom of
Action. Nothing herein will restrict Tekcomp with
respect to the current or future development of the
Application or any other product or service, and Tekcomp
reserves the right to change any plans it may have with
respect to the Application and its other products and
services. No Joint Venture. The Parties hereunder
are operating as independent contractors, and nothing in
this Agreement will be construed as creating a
partnership, franchise, joint venture, employer-employee
or agency relationship. Suggestions and Feedback.
Company may from time to time provide suggestions,
comments or other feedback ("Feedback") to Tekcomp
with respect to the Service. Both parties agree that all
Feedback is and shall be given entirely voluntarily.
Feedback, even if designated as confidential by the
Company, shall not create any confidentiality obligation
for Tekcomp. Company will not give Feedback that is
subject to license terms that seek to require any
Tekcomp product, technology, service or documentation
incorporating or derived from such Feedback, or any
Tekcomp intellectual property, to be licensed or
otherwise shared with any third party. Furthermore
Tekcomp shall be free to use, disclose, reproduce,
license or otherwise distribute, and exploit the
Feedback provided to it as it sees fit, entirely without
obligation or restriction of any kind on account of
intellectual property rights or otherwise. Entire
Agreement. This Agreement constitutes the entire
agreement between the Parties with respect to the
subject matter hereof and supersedes all prior and
contemporaneous agreements or communications. No waiver
of any breach of any provision of this Agreement will
constitute a waiver of any prior, concurrent or
subsequent breach of the same or any other provisions
hereof, and no waiver will be effective unless made in
writing and signed by an authorized representative of
the waiving Party.
Last Revised 02.23.2004
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