Decision-Based Learning (DBL) Software License Agreement

BY CLICKING "I ACCEPT," ACCESSING THE SOFTWARE, DOWNLOADING OR INSTALLING THE SOFTWARE, OR BY OTHERWISE USING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU ARE BINDING YOURSELF AND THE BUSINESS ENTITY THAT YOU REPRESENT (COLLECTIVELY, "LICENSEE") TO THIS AGREEMENT.

The following terms of this License Agreement ("Agreement") govern Licensee's access and use of the Software, except to the extent (a) there is a separate signed agreement between Licensee and Conate governing Licensee's use of the Software or (b) the Software includes a separate "click-accept" license agreement as part of the installation and/or download process.

Section 1: Software License Agreement

1.01   This is a license agreement, not a transfer of title, between Licensee and Conate, Incorporated (Conate) governing Licensee use of the Software.

Section 2: Ownership

2.01   The Decision-Based Learning (DBL) software ("Software") is a proprietary, patent-pending product of Conate and is protected by copyright and trade secret laws. Copyright laws prohibit making any copies of the Software for any reason. Licensee may not copy the written materials, if any, accompanying the Software.

2.02   Licensee acknowledges that the copyrights, trade secrets, and all other intellectual property in the Software are owned by Conate.

2.03   If Licensee receives any external requests for copies of or access to all or part of the Software, Licensee will ask the people making these requests to direct their requests to Conate.

Section 3: License

3.01   Conate grants to Licensee a nonexclusive, non-transferable right to use the Software for Licensee's internal non-commercial evaluation purposes (and, in the case of Conate employees and students for non-commercial educational purposes) for which Licensee has paid the required license fees (if any) on a single-user computer or a single terminal or work station of a multi-user computer or local area network. Each work station or terminal on a multi-user computer or local area network must be separately licensed by Conate.

Section 4: Restrictions

4.01   Licensee agrees not to rent, lease, sublicense, distribute, transfer, copy, reproduce or permit unauthorized access to the Software, or permit third parties to do the same. Licensee may not transfer this license to another person or entity.

4.02   Licensee shall not, without Conate's express written consent, electronically transfer the Software through a LAN or other network system or though any computer subscriber system or "bulletin board" system.

4.03   Licensee shall not create derivative works based upon, make error corrections to or otherwise modify, reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the Software, except to the extent enforcement of the foregoing is prohibited by applicable law.

4.04   Licensee shall not use or permit the Software to be used to perform services for third parties without the express written authorization of Conate.

4.05   Licensee warrants and agrees that it will not use the Software for any illegal purpose, including unauthorized use of intellectual property belonging to third parties (e.g., the posting of copyright-protected content).

Section 5: Protection of Software

5.01   Licensee agrees to take all reasonable steps to protect the Software and documentation, if any, from unauthorized copying or use. The Software source code represents and embodies trade secrets of Conate. The source code and embodied trade secrets are not licensed to Licensee and any modifications, additions or deletions are strictly prohibited.

Section 6: Disclaimer of Warranty and Limitation of Remedy

6.01   Conate does not warrant that the functions contained in the Software will meet Licensee's requirements or that the operation of the Software will be uninterrupted or error-free. THE SOFTWARE IS PROVIDED ON AN "AS IS AND WHERE IS" BASIS WITHOUT WARRANTY OF ANY KIND OR DESCRIPTION EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE AND ANY DOCUMENTATION. IN NO EVENT WILL Conate BE LIABLE TO LICENSEE FOR DAMAGES, INCLUDING ANY LOSS OF PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF LICENSEER USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF Conate OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Conate WILL NOT BE LIABLE FOR ANY SUCH CLAIM BY ANOTHER PARTY. UNDER NO CONDITIONS WILL Conate'S LIABILITY EXCEED THE PURCHASE PRICE OF THIS SOFTWARE.

Section 7: Term and Termination

7.01   This Agreement is effective from the date Licensee accesses the Software and will remain in force until terminated.

7.02   Conate may terminate this License Agreement if Licensee breaches any of the terms and conditions. Upon termination of this Agreement for any reason, Licensee shall cease access to and return the Software copies and documentation, if any, to Conate. All provisions of this Agreement relating to disclaimers of warranties, limitation of liability, remedies, or damages, and Conate's proprietary rights shall survive termination.

Section 8: Indemnification

8.01   Licensee agrees to indemnify Conate against any loss or expense, including reasonable attorneys' fees, incurred by Conate on account of Licensee's use, misuse, transfer or unauthorized copying of this program or other breach of the provisions of this License Agreement.

Section 9: [Reserved]

Section 10: Support, Maintenance & Future Versions

10.1   Licensee acknowledges that Conate has no obligation to provide any type of support for the Software, including but not limited to any maintenance, training or other services.

10.2   This Agreement does not entitle Licensee to any future version, upgrade, update, bug fix or modified version of the Software from Conate unless and to the extent only that Conate elects to make any future version or release available to Licensee. Any such future version or release made available by Conate to Licensee shall be governed by this Agreement unless Conate makes the future version or release available under a different agreement (in which case the different agreement will govern).

Section 11: General

11.1   If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of the remaining provisions of this Agreement.

11.2   Conate will appreciate any comments or suggestions that will improve the Software. Licensee agrees that it hereby relinquishes all rights associated with any comments or suggestions made by Licensee to Conate if those ideas are used to improve the Software. Conate may, at Conate's sole discretion, share the improved Software with Licensee.

11.3   Any and all rights not expressly granted in this Agreement are reserved by Conate. Unless expressly provided in this Agreement, no rights are provided to Licensee under any patents, patent applications, copyrights, trade secrets or other proprietary rights of Conate. Licensee shall not, without the express written permission of Conate, use any of Conate's marks, names, logos, trademarks or indicia (collectively "Trademarks"), nor do or cause to be done any act or thing that would impair Conate's rights in its Trademarks or damage the reputation for quality inherent in its Trademarks.

11.4   This Agreement is governed by the laws of the State of Utah. This Agreement sets forth the entire agreement between the parties concerning the subject matter hereof and may be amended only in a writing signed by both parties.