STANDARD DATA LICENSE AGREEMENT
DO NOT OPEN THE ENCLOSED OR ATTACHED DATA PACKAGE
UNTIL YOU HAVE READ AND AGREED TO THIS LICENSE AGREEMENT*
This is a legal agreement between you, the end user, and Earthward Consulting, Inc. By breaking the seal and opening the media package or opening the e-mail attachment or saving the files as a web download, you acknowledge that you have read this License Agreement, that you understand it, and that you are consenting to the terms of this License. If you do not agree to the terms of this non-exclusive, non-transferable License Agreement, DO NOT OPEN THE PACKAGE and contact Earthward Consulting within seven (7) days at 540-822-5092. Where there is no physical seal or packaging to open, accessing, downloading, or use of the "Data" constitutes acceptance.
DEFINITIONS: "Data" means the digital
information, which shall include, but is not limited to any text, tables,
spreadsheets, databases, GIS, and digital images or photos, contained on the
digital files provided with this package, or
downloaded and which is used, viewed, edited or manipulated. "Data
Copies" means the actual copies of all or any portion of the Data,
including backups, updates, merged or partial copies permitted
hereunder or subsequently provided to you. "Related Materials" means
all of the printed materials and whatever is in the package or
downloaded, and the non-Data contained on the media
supplied in the package, downloaded, or otherwise supplied by or
from Earthward Consulting for use with the Data. "License" means the
grant of certain limited rights to use and maintain the Data, Data Copies and Related Materials. "Server"
means a computer system used by multiple users. "Named User" means (i) a named person or
(ii) a single terminal or a single workstation of a computer system used
only by one person at a time (and not accessed otherwise). "Concurrent Users"
means a specific number of individual workstations licensed to
access the Data on a server at any one time, which once
reached, results in prohibition of any further access until such
time as one or more workstations discontinues access.
You have no
ownership rights in the Data, Data
Copies, or Related Materials. You have a license to use these
materials as long as this License Agreement remains in full force
and effect. Earthward Consulting specifically retains title to any and all Earthward Consulting
Data and Related Material, and all intellectual property
rights therein, and Earthward Consulting licensors retain title to any and all items
owned by them.
PER-USER LICENSE - USES PERMITTED: Data may be used only the "named user". Data may be installed onto a hard disk drive. The Data may also be stored or installed on a storage device such as a network server, used only to install or access the Data on your other computers on an internal network; however you must have acquired a license for each user which accesses the Data on the named computer or accesses the Data from the storage device across a network of IP-based internet web server. A user license for Data may not be shared or used concurrently on different computers or workstations by other users (persons). Data shall not be posted to ftp sites, internet web servers, multiple-office intranets or sent to other users as an e-mail attachment. One backup copy may be made for each legally obtained media copy or downloaded copy you have received, provided that all Earthward Consulting and third party licensor information including copyright notices are maintained, and possession of the copy is retained by you in a secure location. In addition, you agree to use reasonable efforts to protect the Data from unauthorized use, reproduction, distribution or publication. Any other use of the materials is strictly forbidden and is a violation of this License Agreement. All rights not specifically granted in this License are reserved by Earthward Consulting.
PER-USER LICENSE - USES NOT PERMITTED: The Data, and Related Materials are protected by United States Copyright Law and trade secret law, and by international treaty provisions. UNLESS OTHERWISE AGREED TO IN WRITING WITH Earthward Consulting, YOU MAY NOT: (1) Distribute derivative works including but not limited to translations, adaptations, arrangements or any other alteration (each of which would become the property of Earthward Consulting or its licensors, as applicable) or make copies of the Data, except as permitted above; (2) Make copies of the Related Materials; (3) Use any software product to translate, convert, reformat the Data product of another licensor unless you have the legal right to do so; (4) Allow a greater number of users to access the Data at any one time than the total number of user licenses for which you have paid; (5) Distribute, transmit, rent, lease, sublicense or lend the Data, Data Copies, Related Materials or your rights under this License or allow access to the Data, Data Copies, and/or Related Materials by unlicensed internal or external users; (6) Allow third parties to access the Data through any means to obtain reports, maps or other output; (7) Alter, remove or obscure any proprietary legend, copyright or trademark notice contained in or on the Data or Related Materials; (8) Allow "concurrent users" to access the Data.
DURATION: This License Agreement is effective from the day you open the sealed media package or e-mail attachment or download the Data, and/or Related Materials and continues until terminated. You may terminate this License Agreement at any time by returning to Earthward Consulting all the Data, Data Copies, and Related Materials in your possession or under your control. Earthward Consulting may terminate this License Agreement for any reason. If you fail to comply with any provision of this License Agreement, termination is automatic, without notice from Earthward Consulting and without the necessity for recourse to any judicial authority. Upon termination, you must destroy or return to Earthward Consulting all the Data, Data Copies, and Related Materials. If not returned, you agree to certify in writing that all known originals and copies, including backup copies, have been destroyed. Earthward Consulting can also enforce its other legal and equitable rights. All provisions relating to confidentiality, proprietary rights, and non-disclosure shall survive the termination of this License Agreement.
CONFIDENTIALITY: You acknowledge that the Data, and Related Materials contains proprietary trade secrets of Earthward Consulting and you hereby agree to maintain the confidentiality of the Data, and Related Materials using at least as great a degree of care as you use to maintain the confidentiality of your own most confidential information. You agree to reasonably communicate the terms and conditions of this License Agreement to those persons employed by you who come into contact with the Data, and/or Related Materials, and to use reasonable best efforts to ensure their compliance with such terms and conditions.
GENERAL: This Agreement represents our entire understanding and agreement regarding the Data, Data Copies and Related Materials, and supersedes any prior purchase order, communication, advertising or representation, and may only be modified in a written amendment signed by both parties hereto. If any provision of this Agreement shall be unlawful, void or for any reason unenforceable, that provision shall be deemed severable from, and shall in no way affect the validity or enforceability of the remaining provisions.
LIMITED WARRANTY
DISCLAIMER REGARDING THE DATA AND RELATED MATERIALS: THE DATA AND RELATED MATERIALS ARE PROVIDED "AS IS". EXCEPT AS MAY OTHERWISE BE EXPRESSLY SET FORTH HEREIN, EARTHWARD CONSULTING MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE DATA OR THE RELATED MATERIALS, INCLUDING BY WAY OF EXAMPLE AND NOT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SHOULD THE DATA NOT OPERATE SUBSTANTIALLY IN ACCORDANCE WITH THE SUPPLIED DOCUMENTATION, YOUR EXCLUSIVE REMEDY, AND EARTHWARD CONSULTING'S SOLE OBLIGATION UNDER THIS WARRANTY, SHALL BE, AT EARTHWARD CONSULTING'S SOLE DISCRETION, CORRECTION OF THE DEFECT OR REFUND OF THE PURCHASE PRICE PAID FOR THE DATA. EARTHWARD CONSULTING DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE DATA WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE DATA WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE DATA WILL BE CORRECTED, OR THAT THE DATA IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. BY WAY OF FURTHER EXAMPLE AND NOT LIMITATION, EARTHWARD CONSULTING MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE DATA OR RELATED MATERIALS. THE ENTIRE RISK AS TO THE USE THE DATA AND RELATED MATERIALS IS ASSUMED BY YOU. IN NO EVENT SHALL EARTHWARD CONSULTING BE LIABLE TO YOU OR ANY OTHER PERSON, REGARDLESS OF THE CAUSE, FOR THE EFFECTIVENESS OR ACCURACY OF THE DATA OR THE RELATED MATERIALS, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR OCCASIONED BY YOUR USE OF THE DATA OR RELATED MATERIALS, INCLUDING, WITHOUT LIMITATION, ANY AND ALL DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THE FOREGOING IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE INEFFECTIVE, YOU HEREBY AGREE THAT EARTHWARD CONSULTING'S MAXIMUM LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THE DATA AND/OR THE RELATED MATERIALS (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) SHALL NOT EXCEED THE LICENSE FEES PAID BY YOU FOR THE DATA UNIT(S) AND/OR RELATED MATERIALS AT ISSUE.
ACKNOWLEDGEMENT: You acknowledge that you have read this LIMITED WARRANTY, understand it, and agree to be bound by its terms and conditions. You also agree that: (1) No oral or written information or advice given by Earthward Consulting, its distributors, agents or employees shall in any way increase the scope of this Limited Warranty, and you may not rely on any such information or advice. (2) Unless a written governing agreement signed by you and Earthward Consulting exists, this License Agreement is the complete and exclusive statement of agreement between Earthward Consulting and you, and supersedes all proposals, oral or written, and any other communications you may have had prior to purchasing your license. (3) Except for the price and delivery terms agreed upon by both parties, the terms and conditions of this License Agreement shall supersede those set forth in any purchase order where the purchase order conflicts or is inconsistent with or adds to the terms and conditions of this License, and those superseded purchase order terms and conditions shall be null and void. (4) If your organization has purchased a multiple user License, you agree to assure that copies of the License Agreement are distributed, read and agreed to by each person using a licensed product.
GOVERNING LAW: This Agreement shall be construed, interpreted and governed by the laws of the State of Virginia, United States.
U.S. GOVERNMENT RESTRICTED RIGHTS: The Data, Related Materials and documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraph (c)(1) and (2) of the Commercial Computer Software--Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Earthward Consulting, Inc., 38659 Bolington Rd, Lovettsville, VA 20180.
MISCELLANEOUS: If any action is brought by either party to this
Agreement against the other party regarding the subject matter hereof, the
prevailing party shall be entitled to recover, in addition to any other
relief granted, reasonable attorney fees and expenses of litigation.