EightShapes, LLC (“EightShapes”) has made available to you its Deliverables Package (“Deliverables”).
1. LICENSE GRANT. EightShapes hereby grants you a non-exclusive license to use, reproduce, modify, and distribute the Deliverables at no charge. If you distribute the Deliverables or any modifications to the same, any such distribution must be done at no charge to the recipient.
2. TERMINATION. If you breach this Agreement, your right to use the Deliverables will terminate immediately and without notice, but all provisions of this Agreement except the License Grant (Paragraph 1) will survive termination and continue in effect. Upon termination, you must destroy all copies of the Deliverables or any modifications thereto.
3. PROPRIETARY RIGHTS. EightShapes hereby reserves any and all intellectual property rights in the Deliverables, except for the rights expressly granted in this Agreement. Furthermore, if you modify the Deliverables in any way, you hereby grant EightShapes a non-exclusive, royalty-free license to any and all intellectual property rights – except for trademarks – you may have in the modifications to the Deliverables. You also agree to provide a copy of such modifications to EightShapes upon request. This Agreement does not grant you any right to use the trademarks, service marks, or logos of EightShapes. If you wish to use any trademarks, service marks, or logos of EightShapes associated with these Deliverables, any such rights must be separately negotiated with EightShapes.
4. DISCLAIMER OF WARRANTY. THE DELIVERABLES ARE PROVIDED “AS IS” WITH ALL FAULTS. TO THE EXTENT PERMITTED BY LAW, EIGHTSHAPES HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES THAT THE DELIVERABLES ARE FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE, AND NON-INFRINGING. YOU BEAR THE ENTIRE RISK AS TO SELECTING THE DELIVERABLES FOR YOUR PURPOSES AND AS TO THE QUALITY AND PERFORMANCE OF THE DELIVERABLES. THIS LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
5. LIMITATION OF LIABILITY. EXCEPT AS REQUIRED BY LAW, EIGHTSHAPES WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE DELIVERABLES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, AND COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED.
6. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between EightShapes and you concerning the subject matter hereof, and it may only be modified by a written amendment signed by an authorized executive of EightShapes. (b) This Agreement will be governed by the laws of the Commonwealth of Virginia, U.S.A., excluding its conflict of law provisions. (c) Any disputes under this Agreement shall be settled in Fairfax County, Virginia, in accordance with the rules of the American Arbitration Association, and any judgment upon an award may only be entered in and enforced by a court of competent jurisdiction in Fairfax County, Virginia. (d) If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. (e) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. (f) You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms; EightShapes may assign its rights under this Agreement without condition. (g) This Agreement will be binding upon and inure to the benefit of the parties, their successors and permitted assigns.