Subject to these terms and conditions PENCILWRENCH LLC grants you ("The Customer", "You") a non-exclusive, non-transferable, non-sub-licensable license to use certain PENCILWRENCH LLC software product(s) and if applicable, to access PENCILWRENCH's Technical Assistance support services which have been or may be provided to You by PENCILWRENCH LLC under this Agreement along with accompanying data and documentation (the "Documentation"). You acknowledge that, as between You and PENCILWRENCH LLC. PENCILWRENCH LLC owns and retains all rights, title and interest in and to the Product, Data and Documentation, including without limitation all copyright, trademark and intellectual property rights therein, and that the only right You have in the Product, Data or Documentation is the limited right to use the same as set forth in this Agreement. You acknowledge that the Product, Data and Documentation constitute valuable proprietary, confidential and trade secret information of PENCILWRENCH LLC.
2. Information Reproduction Limitations
You may view, copy / reproduce and/or print the "individual workflows / stories" as designed by PENCILWRENCH LLC. You may print invoices, estimates, and quotations from PENCILWRENCH LLC which are required to be printed by law provided that such printing does not include non-story / workflow Data from the Products. Except as expressly provided for in this paragraph, no part of the Product, Documentation or Data, including, but not limited to, materials retrieved therefrom and the underlying code, may be reproduced, copied, re-published, transmitted or otherwise distributed in any form or by any means. In no event shall materials from the PENCILWRENCH LLC, Documentation and/or Data be stored in any information storage and/or retrieval system without the prior written permission of PENCILWRENCH LLC
3. Product Limitations and Restrictions
PENCILWRENCH LLC's Documentation and Data are to be used solely in connection with your professional or your personal use, and not in connection with the business of any other firm, person, organization or any other commercial use. You must not request or authorize a third party to: (1) copy, lease, rent, distribute, assign, or otherwise transfer any rights whatsoever to the PENCILWRENCH LLC's Data or Documentation; (2) translate, modify or create derivative works based on the PENCILWRENCH LLC's Data or Documentation; (3) directly or indirectly, decompile, disassemble, reverse engineer or otherwise attempt to discover the source code or underlying ideas or algorithms of the PENCILWRENCH LLC's Data or Documentation (4) use, or make available for use, the Product, Data or Documentation either (a) on a wide area network or (b) for off-site access without prior, express, written approval from PENCILWRENCH and payment of the fees then in effect for such use; (5) access the PENCILWRENCH LLC's Data, or Documentation on more computers, workstations than are expressly authorized in your Service Agreement; or (6) You may not use any spider, robot, or other automatic device, or manual process to monitor or copy the PENCILWRENCH LLC's Data and/or Documentation, or any other content without PENCILWRENCH LLC's prior written permission.
4. Limited Warranty.
PENCILWRENCH LLC warrants that the Product, when delivered to You, will substantially conform to the then-current published specifications for a period of forty-five (45) days from the date the Product is delivered to You, and that the media, if any, on which the Product is delivered will be free of defects of materials and workmanship. In the event the Product or media is defective within the terms of this warranty, your sole and exclusive remedy shall be PENCILWRENCH LLC's replacement or correction of the defective Product or media. PENCILWRENCH LLC HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. PENCILWRENCH LLC MAKES NO WARRANTY WHATSOEVER THAT ANY PRODUCT, (INCLUDING, WITHOUT LIMITATION, ANY AUTOMATIC DOWNLOADS AND UPDATES), DATA OR DOCUMENTATION IS CORRECT. PENCILWRENCH LLC DOES NOT WARRANT THAT YOUR USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
5. Data Warranty Statement
. You acknowledge that PENCILWRENCH LLC does not warrant, and specifically disclaims any warranty, that the Product, (including, without limitation, any Automatic Downloads and Updates), Data or Documentation or any other information provided in connection therewith is accurate or complete. PENCILWRENCH LLC will make commercially reasonable efforts to provide accurate and complete Data; but the volume of information compiled and the variety of sources from which the information comes makes it impossible to warrant accuracy or completeness of any kind. IN NO EVENT WILL PENCILWRENCH LLC BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED WHETHER BY NEGLIGENCE OR OTHERWISE EVEN IF PENCILWRENCH LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Data Disclaimer
Customer shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of any remote technical support of or to the Product by PENCILWRENCH LLC. PENCILWRENCH LLC, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM ANY TECHNICAL SUPPORT OF OR TO THE PRODUCT, REMOTE OR OTHERWISE.
7. Limitation of Liability.
You acknowledge and understand that Data is provided to PENCILWRENCH LLC by third parties and that its availability and quality is beyond PENCILWRENCH LLC's control. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, PENCILWRENCH LLC's TOTAL LIABILITY, IF ANY, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE AMOUNT PENCILWRENCH LLC RECEIVED FOR THE PRODUCT FROM YOU. PENCILWRENCH LLC AND ITS LICENSORS WILL NOT BE LIABLE IN ANY EVENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT), WHETHER OR NOT FORESEEABLE AND EVEN IF PENCILWRENCH LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, PENCILWRENCH LLC AND ITS LICENSORS WILL NOT BE LIABLE IN ANY EVENT FOR ANY LOSSES OR DAMAGES TO YOUR OR ANY OTHER VEHICLES WHICH RESULT FROM OR ARE RELATED TO YOUR USE OF THE PRODUCT, DATA AND/OR DOCUMENTATION. IN ADDITION, You acknowledge that it is your responsibility to seek legal counsel to inform yourself of and conform to all legal requirements regarding your professional or personal use of this Product. PENCILWRENCH LLC SHALL NOT BE LIABLE FOR ANY LEGAL INSUFFICIENCY REGARDING THE PRODUCT OR YOUR USE OF THE PRODUCT AND DATA AND DOES NOT REPRESENT THAT THE PRODUCT IS LEGALLY SUFFICIENT IN ANY OF THE 50 STATES OR ANY NATION INTO WHICH THE PRODUCTS ARE DISTRIBUTED. It is Your responsibility to ensure Internet service through an independent Internet Service Provider ("ISP") for any online access to any of the Products or Data. PENCILWRENCH LLC SHALL NOT BE LIABLE FOR ANY LACK OF SERVICE OR RESPONSE TIME DELAYS ATTRIBUTABLE TO THE INTERNET, TELECOMMUNICATIONS EQUIPMENT OR SERVICES, YOUR COMPUTERS OR NETWORKS, YOUR ISPs OR ANY OTHER REASON OUTSIDE THE CONTROL OF PENCILWRENCH LLC. YOU ACKNOWLEDGE THAT THE PRODUCT MAY CONTAIN PROGRAMS (INCLUDING COOKIES) PLACED ON YOUR COMPUTER THAT CONNECT TO THE INTERNET IN ORDER TO ENHANCE OR ACTIVATE SECURITY AND PROVIDE OR IMPROVE THE PRODUCT, DATA AND RELATED SERVICES TO YOU AND YOU AUTHORIZE PENCILWRENCH LLC TO DO SO. INFORMATION COLLECTED BY PENCILWRENCH LLC WILL NOT BE MADE COMMERCIALLY AVAILABLE TO THIRD PARTIES.
8. Tax Issues.
Any excise, sales, duties, use or other taxes, which result from Your acquisition or use of the Product, Data and/or Documentation shall be paid exclusively by You. In the event PENCILWRENCH LLC must make any such payments, You shall reimburse PENCILWRENCH LLC for all such payments immediately upon demand.
9. Government Notice
. You may not remove or export from the United States or allow the export or re-export of any part of the Product, Data or Documentation, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the US Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. Other countries may have other laws, restrictions, ordinances, rules and regulations that apply to the export or re-export of the Product, Data or Documentation, or any direct product thereof.
You will indemnify and hold PENCILWRENCH LLC harmless from any damages, liability and losses, and defend PENCILWRENCH LLC against any claim, suit or other proceeding brought against PENCILWRENCH LLC, arising out of or in connection with Your use, misuse, copying or distribution of the Product, Data or Documentation, provided PENCILWRENCH LLC notifies You of such claim, suit or proceeding and gives You reasonable assistance in the defense thereof. You will pay all damages, costs, losses, and expenses arising from such claim, suit, or other proceeding. You will indemnify PENCILWRENCH LLC for any use of the Product that causes any harm to PENCILWRENCH LLC or any of its service or data vendors/providers.
11. Termination of use.
This license shall automatically terminate upon any material breach of the terms of this Agreement (or any other agreement between You and PENCILWRENCH LLC) by You. Material breaches shall include, but not be limited to, the breach of any of the terms and conditions set forth herein or Your failure to pay any invoice from PENCILWRENCH LLC by its due date. Upon termination or expiration of this License for any reason, You shall immediately return to PENCILWRENCH LLC or destroy the Product, Data, and Documentation and all copies thereof.
12. Product Validation.
PENCILWRENCH LLC may from time to time require updates or download of the validation features of the Product. Validation verifies that the Product has been activated and is properly licensed. During a validation check, the Product will send information about the Product to PENCILWRENCH LLC. This information includes the version of the Product and the product key. BY USING THE PRODUCT, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION. If the Product is not properly licensed, the functionality of the Product may be affected. You may only obtain updates or upgrades for the Products from PENCILWRENCH LLC. You agree that PENCILWRENCH LLC may, in its sole discretion and without prior notice, terminate your access to the Product, Data and Documentation and/or block your future access to the Product, Data and Documentation if PENCILWRENCH LLC determines that You have violated any terms of this Agreement. You also agree that any violation by You of the Agreement will constitute an unlawful and unfair business practice, and will cause irreparable harm to PENCILWRENCH LLC, for which monetary damages may be inadequate, and You consent to PENCILWRENCH LLC obtaining any injunctive or equitable relief that PENCILWRENCH LLC deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies PENCILWRENCH LLC may have at law or in equity. YOU AGREE THAT IF YOU ARE IN POSSESSION OF AN UNAUTHORIZED COPY, YOUR CLICKING ON THIS AGREEMENT CONSTITUTES A CONTRACT WITH PENCILWRENCH LLC THE TERMS OF WHICH ARE LIMITED TO OUR BEING AUTHORIZED BY YOU TO DISABLE THE PRODUCT AND SEEK REMEDIES AS PROVIDED FOR IN THIS AGREEMENT AND UNDER APPLICABLE FEDERAL AND STATE LAWS.
13. Terms and conditions are subject to be changed by PENCILWRENCH LLC. Continued use of the Product, Data and Documentation constitutes your acceptance of any changes made by PENCILWRENCH LLC to these terms and conditions as they may be amended from time to time and may be found at www.pencilwrench.com. You acknowledge that it is Your responsibility to check the above website for updated or amended terms and conditions.