CHECKBOX SURVEY SERVER

END USER LICENSE AGREEMENT

©2012 Prezza Technologies, Inc. d.b.a. Checkbox Survey Solutions http://www.checkbox.com

This is a legal agreement between the end user (“You”) and Prezza Technologies, Inc. d.b.a. Checkbox Survey Solutions, its affiliates and subsidiaries (collectively “Licensor”).  This Agreement is part of a package (the “Package”) that also includes, as applicable, executable and non-executable application files that You may download or a receive on CD-ROM (both referred to herein as the “Software”) and certain written materials (the “Documentation”). Any patch, update, upgrade, modification or other enhancement provided by Licensor to You under a separate maintenance agreement shall be included within the meanings of those terms, for the purposes of this Agreement.

BY DOWNLOADING OR INSTALLING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM.  YOU UNDERSTAND THAT, IF YOU PURCHASED A LICENSE TO THE SOFTWARE FROM AN AUTHORIZED RESELLER OF LICENSOR, THAT RESELLER IS NOT LICENSOR’S AGENT AND IS NOT AUTHORIZED TO MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, STATUTORY OR OTHERWISE, ON LICENSOR’S BEHALF OR TO VARY ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT.

If YOU do not agree to the terms of this Agreement, do not accept them and, if YOU have received the Software or Documentation, promptly return the entire Package to the place You obtained it for a full refund.

LIMITED LICENSE:  Subject to Your compliance with the terms and restrictions contained herein, You are entitled to use this Software for Your own internal business use, but may not sell or transfer reproductions of the Software or Documentation to other parties in any way.  You may use one copy of the Software on a single server or additional servers if agreed to in writing by Licensor and all applicable license fees have been paid, plus one additional server solely for evaluation and testing purposes.

LICENSE PURCHASE:  You have agreed to purchase the number of licenses as specified through on an ordering document (“Ordering Form”).  You further agree to pay all fees specified thereon within thirty (30) days from the date of such Ordering Form.

OWNERSHIP; COPYRIGHT: Title to the Software and the Documentation, including derivative works thereof, and patents, copyrights and all other property rights applicable thereto, shall at all times remain solely and exclusively with Licensor and its licensors, and You shall not take any action inconsistent with such title. The Software and the Documentation are protected by United States and international laws, rules, regulations and treaty provisions.  Any rights not expressly granted herein are reserved to Licensor and its licensors.

SOFTWARE DEVELOPER KIT: If you have purchased the Checkbox Software Developer Kit (SDK) or have purchased any Checkbox Software License package that includes the SDK, you acknowledge that use of the SDK is also bound by the terms of this Agreement and any associated Support Terms that encompass the entirety of this Agreement. You further acknowledge that purchase of the SDK entitles you to Minor Enhancement Releases to the SDK, as they are publicly available. A Minor Enhancement Release is defined as an embodiment of the Product that delivers minor performance improvements or enhancements of existing features and/or functionality to the Product. The Licensor makes no warranty as to the availability, number or frequency of said releases.  Purchase of the SDK does not entitle you to Product Upgrade releases of the SDK. A Product Upgrade release is defined as an embodiment of the Product that delivers substantial performance improvements, architectural changes or new features and/or functionality to the Product, for which Checkbox may charge a separate license fee.

OTHER RESTRICTIONS:  You may not cause or permit the disclosure, copying, renting, licensing, sublicensing, leasing, dissemination or other distribution of the Software or the Documentation by any means or in any form, without the prior written consent of Licensor.  You may not use the Software to conduct a service or similar business for the use or benefit of third parties. You may not modify, enhance, supplement, create derivative work from, adapt, translate, reverse engineer, decompile, disassemble or otherwise reduce the Software to human readable form.

CONFIDENTIALITY: You acknowledge and agree the Software and associated Documentation constitute valuable proprietary and confidential information and intellectual property (collectively, the “Proprietary Information”) of Licensor and its licensors.  You may not use or disclose the Proprietary Information without Licensor’s prior written consent, except disclosure to and subsequent uses by your employees and contractors who have a need-to-know, provided such employees and contractors have executed written agreements restricting use or disclosure of Proprietary Information that are at least as protective as those set forth in this Agreement.  You agree to use at least the same degree of care in protecting the Proprietary Information as you use to protect your own similar information, but in no event less than reasonable care.  You acknowledge that due to the unique nature of the Proprietary Information, Licensor will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Proprietary Information.  In addition to any other remedies that may be available in law, in equity, or otherwise, Licensor shall be entitled to obtain injunctive relief to prevent such unauthorized use or disclosure.  You shall not use any information or data disclosed by Licensor in connection with this Agreement to contest the validity of any Licensor intellectual property.  Any such use of Licensor information and data shall constitute a material, non-curable breach of this Agreement.

LIMITED WARRANTY: Licensor warrants for a period of ninety (90) days following original purchase of this copy of the Software that the Software will perform substantially in accordance the Documentation.  You must report a breach of the foregoing warranty during the warranty period.  In the event of breach of this limited warranty, Licensor will use commercially reasonable efforts to repair the Software or replace it with software of substantially similar functionality.  This limited warranty:  (i) applies to the initial purchaser only and may be acted upon only by the initial purchaser; and (ii) does not apply to any patch, update, upgrade, modification, or other enhancement provided by Licensor under a separate maintenance agreement with respect to the Software or the Documentation provided by Licensor which are provided on an AS IS BASIS ONLY. Licensor does not warrant that the Software will meet Your specific requirements or that operation of the Software will be uninterrupted or error-free. Licensor is not responsible for any problem, including any problem which would otherwise be a breach of warranty, caused by (i) modifications to the Software by parties other than Licensor, (ii) changes in the operating characteristics of computer hardware or computer operating systems, (iii) interaction of the Software with hardware or software not supplied or approved by Licensor, or (iv) accident, abuse, virus or misapplication.  EXCEPT AS STATED ABOVE, LICENSOR AND ITS LICENSORS MAKE NO OTHER WARRANTY OR CONDITION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THIS SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  THIS SECTION SETS FORTH LICENSOR’S SOLE LIABILITY AND YOUR SOLE REMEDY FOR BREACH OF THE LIMITED WARRANTY

LIMITATION OF LIABILITY: IN NO EVENT WILL LICENSOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF FEES PAYABLE TO LICENSOR PURSUANT TO THIS AGREEMENT (INCLUDING FEES BOTH PAID AND DUE) AT THE TIME OF THE EVENT GIVING RISE TO THE LIABILITY; AND (ii) IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF LICENSOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this section, Licensor’s liability will be limited to the maximum extent permissible.

TERMINATION: Without prejudice to any other rights, Licensor may terminate this license if You fail to comply with the terms and conditions of this License.  In such event, You must destroy all copies of the Software and Documentation and all of its component parts.

GENERAL: This Agreement constitutes the entire understanding between Licensor and You with respect to subject matter hereof.  Any change to this Agreement must be in writing, signed by Licensor and You. Terms and conditions as set forth in any purchase order which differ from, conflict with, or are not included in this Agreement or the Order Form, shall not become part of this Agreement unless specifically accepted by Licensor in writing. You shall be responsible for and shall pay, and shall reimburse Licensor on request if Licensor is required to pay, any sales, use, value added (VAT), consumption or other tax (excluding any tax that is based on Licensor’s net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Package.

AMENDMENT: This Agreement may not be modified except (i) by authorized representatives of each party and (ii) in a written contract signed by both parties.

ASSIGNMENT & SUCCESSORS: Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.

EXPORT AND IMPORT COMPLIANCE: In the event You export the Software or the Documentation outside of the United States, You assume the responsibility for compliance with all applicable import, export and re-export regulations, as the case may be.

GOVERNMENT RESTRICTED RIGHTS: The Software and Documentation are “commercial computer software” or “commercial computer software documentation.”  Absent a written agreement to the contrary, the U.S. Government’s rights with respect to such Software or Documentation are limited by the terms of this Agreement, pursuant to FAR 12.212(a) and/or DFARS 227.7202-1(a), as applicable.

GOVERNING LAW; ARBITRATION: This Agreement shall be governed by and construed under the the laws of the Commonwealth of Massachusetts, U.S.A., excluding (a) its conflicts of laws principles; (b) the United Nations Convention on Contracts for the International Sale of Goods; (c) the 1974 Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention”); and (d) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.  The parties agree to the exclusive jurisdiction of the courts of Massachusetts.

PLEASE DIRECT ALL INQUIRES TO:

Checkbox Survey Solutions
44 Pleasant St, Suite 110 Watertown, MA 02472
Tel: 617-715-9600
Fax: 617-876-1279
info@checkbox.com
http://www.checkbox.com