YOU ARE NOT REQUIRED TO ACCEPT THIS AGREEMENT, SINCE YOU HAVE NOT SIGNED IT. HOWEVER, NOTHING ELSE GRANTS YOU PERMISSION TO USE RANDOM WALK VENTURES, LLC’S SOFTWARE OR THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE OR ITS OR THEIR DERIVATIVE WORKS (THIS INCLUDES BUT NOT LIMITED TO ANY DOWNLOAD, INSTALLING, RUNNING, USING, VIEWING SOURCE CODE, MODIFYING, COPYING). THESE ACTIONS ARE PROHIBITED BY LAW IF YOU DO NOT ACCEPT THIS AGREEMENT. THEREFORE, BY USING ANY PART OF THIS SOFTWARE (OR ANY WORK BASED ON THIS SOFTWARE), YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT, AND ALL ITS TERMS AND CONDITIONS.
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS RANDOM WALK VENTURES, LLC, IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU SHOULD DESTROY ALL COPIES YOU HOLD OF RANDOM WALK VENTURES, LLC’S AND/OR FLEXIBLERETIREMENTPLANNER.COM SOFTWARE AND DERIVATIVE WORKS IMMEDIATELY.
RANDOM WALK VENTURES, LLC, RESERVES THE RIGHT TO CHANGE THE TERMS OF THESE LICENSE AGREEMENTS AT ANY TIME. Changes to the License Agreements will be announced on the flexibleretirementplanner.com website. Failure to receive notification of a change does not make those changes invalid. Current copies of the License Agreements will be available on this page.
By accepting this or any previous License Agreement from Random Walk Ventures, LLC, you have agreed to be bound by the terms and conditions of this Agreement and by any subsequent agreement, and that there are no circumstances where deviation from the agreed terms and conditions is permissible. Please beware that failure to fulfill your obligations under the agreement could be seen as a breach of contract leading to termination of your license with Random Walk Ventures, LLC.
The software is licensed, not sold. This Agreement only gives you some rights to use the software. Random Walk Ventures, LLC, reserves all other rights. You may use the Software only as expressly permitted in this agreement.
These Terms apply to any of the software products developed by Random Walk Ventures, LLC, and/or made available on the website flexibleretirementplanner.com. This Software License Agreement (the “Agreement”) is a contract between you (“you” or “Licensee”), as either an individual or a single entity, and Random Walk Ventures, LLC and/or flexibleretirementplanner.com (“we,” “our,” “us,” or “Licensor”), that describes the terms and conditions applicable to your use of the Software (defined below) and associated services identified below. Before using or purchasing the Software, you must read and accept the terms and conditions contained in this Agreement. Before you purchase this license for the Software directly from Random Walk Ventures, LLC, if you do not agree with the terms and conditions of this Agreement, promptly terminate your order and/or purchase process; proceeding with the purchase and/or installation of the Software on any computer or end-user device (including though not limited to smartphone, tablet, phablet, or any electronic device or media/medium) means by your actions you expressly consent to these license terms and conditions.
1. INTRODUCTION AND AGREEMENT.
The term “Software” is defined as the Random Walk Ventures, LLC, and/or flexibleretirementplanner.com website (“website”) and/or computer program with which this Software License Agreement is included and any updates, features, enhancements, bug fixes or modifications and may include associated source code, media, printed materials, and “on-line” or electronic documentation (collectively, the “Software”) and any related services and content (“Services”) that may be provided by us under this Agreement. You must accept the terms of this Agreement before accessing or otherwise using the Software or any of the services that may be provided by us under this Agreement (“Services”). To access and use the Software and Services, Licensee must have access to the Internet.
BY DOWNLOADING AND/OR USING SOFTWARE FROM OUR WEBSITE AND/OR INSTALLATION MEDIUM, THE INDIVIDUAL OR ENTITY LICENSING THE PRODUCT (“LICENSEE”) IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE LICENSEE MUST NOT PURCHASE, INSTALL OR USE ANY OF THE SOFTWARE DEVELOPED BY RANDOM WALK VENTURES, LLC(“LICENSOR”).
If you do not understand all of the terms set forth herein, please consult with an attorney before proceeding further as this is a legally binding contract. By downloading, accessing, installing or using the Software or the Services (or authorizing any other person to do so) you are representing and warranting that you have reached the age of majority in your state or country, have the authority to enter into a binding legal contract, have read and understood this Agreement and agree to be bound by its terms. This Agreement comprises the entire agreement between you and us and supersedes any prior or contemporaneous agreements, promises, representations, or descriptions pertaining to the subject matter contained herein. If you do not agree with the terms and conditions of this Agreement, you may not purchase, download, access, install or use the Software or the Services.
2. LICENSE GRANT. The Software is licensed on a per-named-user basis. In the event that Licensee is an entity, Licensee must purchase one license for each user of the Software unless a site-wide license has been granted by Random Walk Ventures, LLC. A single user may install the Software on as many as two computers and/or devices and/or machines at any given time. Access by persons other than authorized licensees/users will constitute a material breach of this Agreement. Licensor may grant Licensee ONE of four non-exclusive, non-transferable, limited (with no right to sub-license) License types to use for personal or internal business purposes the Flexible Retirement Planner Software:
2.1 Evaluation, Limited-Use: the evaluation default for non-commercial and/or educational users, an unlicensed limited time/limited use demo version which you may use solely for the purpose of determining whether to purchase a Personal, Standard, or Customized License and not for any revenue generation, commercial activity, or other productive business or developmental purpose, the term of which will be limited to the free trial specified in the Order Document or six (6) months from date of first use, whichever comes first, and any license rights granted hereunder will automatically terminate at the end of the Trial Period, for which there will be no renewal term, but if you wish to use the Evaluation Software after the trial period expires, you acknowledge and agree that you shall be responsible for any and all license fees required for such use;
2.2 Personal Edition License: the minimal license version, upon donation to the flexibleretirementplanner.com website you shall receive a ‘personal use’ license key, though the software may be used by Licensee solely for Licensee’s use and for no other purpose;
2.3 Standard Professional License: available as either ‘per user’ or ‘site wide,’ upon payment of the applicable license fee, you are authorized to use the software and web application for commercial use ‘as built.’ LICENSE KEY REQUIRED: Installation and continuous use of the Software will require one or more license keys, which are issued by Random Walk Ventures, LLC, to Licensee, and contain license related data that is recognized by the Software for automated license management purposes. The projected return, standard deviation, correlation, inflation assumptions and/or other financial assumption and/or calculations and/or projections included as features of the Software or Service are based on a combination of the historical performance of an appropriate broad market index, additional research, and a current assessment of the economy and financial market conditions. These conditions might or might not occur in the future. We offer such return, standard deviation, correlation and inflation assumptions “as is,” as a convenience to you. We do not warrant or guarantee any of these assumptions, nor do we recommend, warrant, or guarantee their usefulness. You have the flexibility to input your own assumptions for projected data. Therefore, if you decide to use the projected data included with the Software or Service, you understand and agree that such usage is at your own risk, that you bear all responsibility for the results generated through the use of such data, and that we shall not have any liability of any kind whatsoever to you, or to any party, because of your use of such data. AS A PROFESSIONAL FINANCIAL ADVISOR, LICENSEE BEARS ALL RESPONSIBILITY FOR ADVICE AND SERVICES FURNISHED TO YOUR CLIENTS, REGARDLESS OF WHETHER YOU EMPLOYED THE SOFTWARE, SERVICE OR SITE IN CONNECTION WITH THE DEVELOPMENT OF SUCH ADVICE. POSSIBLE FUTURE RESULTS OF INVESTMENT DECISIONS ARE PROVIDED MERELY FOR INFORMATION PURPOSES AND SHOULD NOT BE REGARDED AS A PREDICTION OR GUARANTEE OF ANY FUTURE RESULTS. You agree that by using the Software and/or Service, you will assume sole responsibility to exercise your own professional judgment in verifying all information when inputting your own assumptions, relying on any assumptions provided through the Service, and/or verifying the accuracy of Client Information.
2.4 Customized License: available as either ‘per user’ or ‘site wide,’ upon payment of the applicable license fee, you are authorized to receive limited customization capabilities, including changing graphics, report headers, and some program text messages. The projected return, standard deviation, correlation, inflation assumptions and/or other financial assumption and/or calculations and/or projections included as features of the Software or Service are based on a combination of the historical performance of an appropriate broad market index, additional research, and a current assessment of the economy and financial market conditions. These conditions might or might not occur in the future. We offer such return, standard deviation, correlation and inflation assumptions “as is,” as a convenience to you. We do not warrant or guarantee any of these assumptions, nor do we recommend, warrant, or guarantee their usefulness. You have the flexibility to input your own assumptions for projected data. Therefore, if you decide to use the projected data included with the Software or Service, you understand and agree that such usage is at your own risk, that you bear all responsibility for the results generated through the use of such data, and that we shall not have any liability of any kind whatsoever to you, or to any party, because of your use of such data. LICENSE KEY REQUIRED: Installation and continuous use of the Software will require one or more license keys, which are issued by Random Walk Ventures, LLC, to Licensee, and contain license related data that is recognized by the Software for automated license management purposes. AS A PROFESSIONAL FINANCIAL ADVISOR, LICENSEE BEARS ALL RESPONSIBILITY FOR ADVICE AND SERVICES FURNISHED TO YOUR CLIENTS, REGARDLESS OF WHETHER YOU EMPLOYED THE SOFTWARE, SERVICE OR SITE IN CONNECTION WITH THE DEVELOPMENT OF SUCH ADVICE. POSSIBLE FUTURE RESULTS OF INVESTMENT DECISIONS ARE PROVIDED MERELY FOR INFORMATION PURPOSES AND SHOULD NOT BE REGARDED AS A PREDICTION OR GUARANTEE OF ANY FUTURE RESULTS. You agree that by using the Service, you will assume sole responsibility to exercise your own professional judgment in verifying all information when inputting your own assumptions, relying on any assumptions provided through the Service, and/or verifying the accuracy of Client Information.
This Agreement is a license of software in the form of intellectual property, and not for the sale of goods, and is not governed by the Uniform Commercial Code. Licensee does not obtain any rights to this Software except as expressly set forth in this License. Licensee does not have the right to sell, sub-license or otherwise provide this Software to any third party, even if Licensee sells the machine that uses the Software. This License does not entitle Licensee to receive from Licensor hard-copy documentation, technical support, telephone assistance, or enhancements or updates to the Software unless specific Software has been purchased by the Licensee that clearly states otherwise. Any reproduction or redistribution of the Software not in accordance with this License Agreement is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. Licensor warrants that it has the right to grant the foregoing license.
3. TERM. Unless otherwise specified herein, the License shall be for a term of one (1) year, and shall be automatically renewed for successive one (1) year terms, unless either party shall give the other party written notice that it intends not to so renew or unless Licensee fails to pay the applicable license and/or license renewal fee, if any, or unless earlier terminated as provided herein. Licensor may terminate this Software License Agreement immediately without prior notice if you fail to comply or otherwise violate the terms of this Software License Agreement or any other applicable agreement, infringing the intellectual property rights of Licensor or any third party, manifestly endangering public order or good moral standards as determined by us in our sole discretion, or if Licensor is unable to verify or authenticate any information about you that you supply through the Software and/or the flexibleretirementplanner.com website, or any other activity connected to the Software or Service. We may also decide to terminate this Software License Agreement in the event that we terminate the operation of the Software Package. You may terminate this Software License Agreement at any time by destroying all copies of the Software in your possession or control, and informing Licensor in writing or by such means as may be implemented for such purposes by Licensor. Upon termination of this Software License Agreement, any and all of the rights granted to you hereunder shall automatically terminate. Promptly upon termination, you must cease all use of the Software and destroy all copies of the Software in your possession or control. You acknowledge and agree that the termination of this Software License Agreement or permanent deletion of the Software may render the Software, its attributes and/or any content you entered unusable, for which you will not hold Licensor in any way responsible.
4. RESTRICTIONS; RIGOROUS ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS; PROPRIETARY RIGHTS. The Software is protected by copyright, trade dress and other laws and may not be copied or imitated in whole or in part. Unless stated otherwise, all Content is Copyright 2013. Random Walk Ventures, LLC. All rights reserved. All product names, company names, marks, logos, and symbols may be the trademarks of their respective owners. This Agreement does not limit any rights that we may have under trade secret, copyright, patent, trademark or other laws. Except as otherwise expressly permitted in this Agreement, or in another Licensor agreement to which Licensee is a party, Licensee may not: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software, regardless of whether applicable laws specifically prohibit such restriction; (b) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; or (c) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. Any products created as a result shall be judged illegal by definition of all applicable law. Any sale or resale of intellectual property or created derivatives so obtained will be prosecuted to the fullest extent of all local, federal and international law. Title, ownership rights, and intellectual property rights in the Software shall remain in Random Walk Ventures, LLC, and/or its assignee. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Random Walk Ventures, LLC, or its assignee’s ownership of or rights with respect to the Software.
5. FEES. Appropriate License fees are applicable if the Software is being used directly or indirectly in any commercial application. If Licensee wishes to receive the Software on media, there may be a small charge for the media and for shipping and handling. Licensee is responsible for any and all taxes. Licensor reserves the right to charge fees for future use of the Software in Licensor’s sole discretion. If Licensor decides to charge an annual or other fee for the Software, Licensor will disclose such charges to Licensee prior to charging such fees. As will be appropriate and stated on an agreement more specific than this Software License Agreement, the functional content of the Software purchased by the Licensee may come to vary significantly from what is the basic version of the software, and therefore, the fees may be adjusted based on the circumstance mutually beneficial to Licensee and Licensor, and on another agreement as will be contracted by the Licensor and Licensee, independent from the fee of the licensed Software.
NO MONEY BACK GUARANTEE. No refunds for any amount for purchases of licenses or support are guaranteed.
6. TERMINATION. Without prejudice to any other rights, Licensor may terminate in its sole discretion this Agreement if Licensee breaches any of its terms and conditions. Upon termination, Licensee shall destroy all copies of the Software.
7. INJUNCTIVE RELIEF. Licensee and Licensor agree that in the event of any breach of this Agreement, Licensor will be irreparably harmed and the full extent of injury resulting therefrom will be impossible to calculate. Thus, Licensor will not have an adequate remedy at law. Accordingly, Licensee agrees that Licensor will be entitled to injunctive relief, without bond or security or the need to prove irreparable harm, in addition to having an action at law for damages and all other relief the law may allow.
8. ERRORS AND CORRECTIONS. Random Walk Ventures, LLC, endeavors to provide accurate information on and through the flexibleretirementplanner.com website, but errors may occur and information may become out of date. Random Walk Ventures, LLC does not guarantee the accuracy, completeness, or timeliness of the information available on or through the flexibleretirementplanner.com website. Random Walk Ventures, LLC may in its discretion change the information available on or through the Web site at any time and from time to time without any notice or liability to you or any other person. You may obtain complete and up-to-date information regarding Random Walk Ventures, LLC software and/or services by reading any or all applicable notices posted on the flexibleretirementplanner.com website.
9. DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED AS DERIVED FROM THE PROFESSIONAL EFFORTS OF THE LICENSOR’S DEVELOPMENT GROUP, AND, THEREFORE, ON AN “AS IS” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND (WHETHER EXPRESS, IMPLIED OR STATUTORY), AND INCLUDING WITHOUT LIMITATION REPRESENTATIONS, WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, DURABILITY, AVAILABILITY, TIMELINESS, ACCURACY OR COMPLETENESS, ALL OF WHICH ARE HEREBY DISCLAIMED BY RANDOM WALK VENTURES, LLC TO THE FULLEST EXTENT PERMITTED BY LAW. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS BORNE BY LICENSEE. FURTHER, THERE WILL NOT BE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. SHOULD THE SOFTWARE PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT THE LICENSOR (OR ITS ASSIGNEE) ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. IN ADDITION, THE SECURITY MECHANISMS IMPLEMENTED BY THE SOFTWARE, IF ANY, MAY HAVE INHERENT LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE SOFTWARE SUFFICIENTLY MEETS ITS REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
YOU ARE SOLELY RESPONSIBLE FOR: (A) OBTAINING, CONFIGURING AND MAINTAINING ALL COMPUTER HARDWARE, SOFTWARE, TELEPHONE/INTERNET SERVICES, AND OTHER EQUIPMENT AND SERVICES NECESSARY FOR YOU TO ACCESS AND USE THE SOFTWARE AND/OR THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE; (B) SCANNING FOR AND PREVENTING THE RECEIPT AND TRANSMISSION OF VIRUSES, TROJAN HORSES, WORMS OR OTHER DESTRUCTIVE OR DISRUPTIVE COMPONENTS; AND (C) MAINTAINING A COMPLETE AND CURRENT BACKUP OF ALL OF THE INFORMATION CONTAINED ON YOUR COMPUTER SYSTEM PRIOR TO ACCESSING OR USING THE SOFTWARE AND/OR THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE.
THE INTERNET IS NOT A SECURE MEDIUM, MAY BE SUBJECT TO INTERRUPTION AND DISRUPTION, AND INADVERTENT OR DELIBERATE BREACHES OF SECURITY AND PRIVACY. THE OPERATION OF THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND LICENSOR’S CONTROL. THE OPERATION OF THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE MAY NOT BE CONTINUOUS OR UNINTERRUPTED, SECURE OR PRIVATE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR MAKES NO REPRESENTATION, WARRANTY OR CONDITION THAT: (A) THE SOFTWARE AND/OR THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE WILL BE COMPATIBLE WITH YOUR COMPUTER AND RELATED EQUIPMENT AND SOFTWARE; (B) THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE WILL BE AVAILABLE OR EITHER IT OR THE SOFTWARE WILL FUNCTION WITHOUT INTERRUPTION OR WILL BE FREE OF ERRORS OR THAT ANY ERRORS WILL BE CORRECTED; (C) THE SOFTWARE AND/OR THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE WILL MEET YOUR REQUIREMENTS; (D) THE INFORMATION CONTAINED IN THE SOFTWARE AND/OR THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE OR DERIVED FROM THE SOFTWARE AND/OR THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE WILL BE ACCURATE, COMPLETE, SEQUENTIAL, OR TIMELY; (E) CERTAIN OR ANY RESULTS MAY BE OBTAINED THROUGH THE ACCESS TO OR USE OF THE SOFTWARE AND/OR THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE; (F) THE ACCESS TO AND USE OF THE SOFTWARE AND/OR THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE, INCLUDING THE BROWSING AND DOWNLOADING OF ANY INFORMATION, WILL BE FREE OF VIRUSES, TROJAN HORSES, WORMS OR OTHER DESTRUCTIVE OR DISRUPTIVE COMPONENTS; OR (G) THE ACCESS TO AND USE OF THE SOFTWARE AND/OR THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE WILL NOT INFRINGE THE RIGHTS (INCLUDING INTELLECTUAL PROPERTY RIGHTS) OF ANY PERSON; AND LICENSOR DISCLAIMS ANY AND ALL LIABILITY REGARDING SUCH MATTERS TO THE FULLEST EXTENT PERMITTED BY LAW.
THE ONLINE TOOLS (INCLUDING BUT NOT LIMITED TO APPLICATIONS AND CALCULATORS) AVAILABLE ON OR THROUGH THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE ARE FOR INFORMATIONAL OR GENERAL ILLUSTRATIVE PURPOSES ONLY, AND ARE NOT GUARANTEED TO BE ACCURATE, COMPLETE OR TIMELY. THE INFORMATION AND RESULTS PROVIDED BY THE SOFTWARE AND/OR ONLINE TOOLS ARE BASED UPON ASSUMPTIONS, PROJECTIONS, AND DATA THAT MAY NOT BE CORRECT OR APPLICABLE TO YOUR PARTICULAR SITUATION AND/OR CIRCUMSTANCES.
10. LIMITATION OF LIABILITY; LIQUIDATED DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS ASSIGNEE, IF ANY, BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF USE, LOSS OF PRODUCTION, LOSS OF INCOME OR PROFITS (ANTICIPATED OR OTHERWISE), LOSS OF MARKETS, ECONOMIC LOSS, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE), ARISING FROM, CONNECTED WITH, OR RELATING TO THE ACCESS TO AND USE OF THE SOFTWARE OR THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE BY YOU OR ANY OTHER PERSON, AND REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING BY LICENSOR OR ANY PERSON FOR WHOM LICENSOR MAY BE RESPONSIBLE, AND NOTWITHSTANDING THAT LICENSOR MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES BEING INCURRED BY YOU OR ANY OTHER PERSON. WITH THE EXCEPTION OF VERIFIABLE ACTS OF FRAUD OF LICENSOR, THE LICENSEE AGREES TO HOLD HARMLESS THE LICENSOR OR ITS RESELLERS.
WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE ENTIRE LIABILITY OF LICENSOR TO LICENSEE OR ANY OTHER PERSON FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, AND COSTS, UNDER ANY PROVISION OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, AND REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING BY LICENSOR OR ANY PERSON FOR WHOM LICENSOR IS RESPONSIBLE, EXCEED $25.00 (USD) OR IN THE AGGREGATE ONE-TENTH OF THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY) AND FEES FOR SUPPORT OF THE PRODUCT RECEIVED BY LICENSOR UNDER A SEPARATE SUPPORT AGREEMENT (IF ANY), WHICHEVER IS LESS.
IN THE EVENT THE AGREEMENT IS TERMINATED DUE TO LICENSEE’S BREACH OF ITS TERMS, LICENSEE AGREES THAT IT IS VIRTUALLY CERTAIN THAT LICENSOR WOULD BE DAMAGED DUE THE UNAUTHORIZED COPYING, DISTRIBUTION OR REVERSE ENGINEERING OF THE SOFTWARE. ANY LICENSEE (OR ANY UNAUTHORIZED PERSON OBTAINING THE SOFTWARE VIA LICENSEE OR OTHER MEANS) THAT ALLOWS OR DOES REVERSE ENGINEER, DECOMPILE AND/OR DERIVE THE SOURCE CODE FOR THE SOFTWARE, SHALL BE LIABLE TO LICENSOR IN LIQUIDATED DAMAGES IN THE AMOUNT OF $100,000.00 (USD), WITH INTEREST THEREON OF TEN PERCENT (10%), COMPOUNDED, FROM THE DATE OF LICENSOR’S BREACH. FURTHERMORE, IT IS SPECIFICALLY AGREED BY LICENSEE THAT THE LIQUIDATED DAMAGES SUM IS REASONABLE, AND A REASONABLE FORECAST OF DAMAGES AND ANY ARGUMENTS TO THE CONTRARY ARE WAIVED. FURTHERMORE, THE LICENSEE OR UNAUTHORIZED PERSON SPECIFICALLY AGREES THAT THE LIQUIDATED DAMAGES MAY BE COLLECTED BY CIVIL ACTION AND THE JUDGMENT MAY BE EXECUTED AND/OR COLLECTED IN ANY PLACE IN THE WORLD WHERE LICENSEE OR UNAUTHORIZED PERSON MAY HAVE MONEY OR PROPERTY SUBJECT TO ANY JUDGMENT, AND FURTHERMORE SPECIFICALLY WAIVES ANY NATIONAL OR INTERNATIONAL LIMITATIONS ON PERFECTING OR COLLECTING THE JUDGMENT. ADDITIONALLY, LICENSOR SHALL BE ENTITLED TO REASONABLE ATTORNEYS’ FEES AND COSTS ASSOCIATED WITH ENFORCING ITS RIGHTS UNDER THIS AGREEMENT.
11. RELEASE. YOU HEREBY RELEASE, REMISE AND FOREVER DISCHARGE LICENSOR FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE AND KIND WHATSOEVER AND HOWSOEVER ARISING, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER EXIST, WHICH ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR ACCESS TO AND USE OF THE SOFTWARE AND/OR THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE.
12. INDEMNITY. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND ITS OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS, PARTNERS (INCLUDING, WITHOUT LIMITATION, RESELLERS, INTERNET PORTAL PROVIDERS, AND FINANCIAL INSTITUTIONS THROUGH WHOM YOU MAY HAVE BEEN INTRODUCED OR PROVIDED ACCESS TO THE SOFTWARE, SERVICE, CONTENT, OR REPORTS), ADVERTISERS AND SUPPLIERS (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, EXPENSES, DAMAGES AND COSTS, INCLUDING WITHOUT LIMITATION REASONABLE LEGAL FEES AND EXPENSES, INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY CLAIM OR DEMAND ARISING OUT OF, RELATED TO, OR CONNECTED WITH YOUR ACCESS TO OR USE OF THE SOFTWARE AND/OR FLEXIBLERETIREMENTPLANNER.COM WEBSITE OR YOUR BREACH OF THIS AGREEMENT (INCLUDING VIOLATION OF ANY PERSON’S PROPRIETARY RIGHTS) BY YOU OR ANY OTHER PERSON ACCESSING THE SOFTWARE AND/OR THE FLEXIBLERETIREMENTPLANNER.COM WEBSITE USING YOUR ACCOUNT OR LICENSE KEY. YOU WILL ASSIST AND CO-OPERATE AS FULLY AS REASONABLY REQUIRED BY THE INDEMNIFIED PARTIES IN THE DEFENSE OF ANY CLAIM OR DEMAND.
ADVICE AND INFORMATION PROVIDED BY LICENSOR, WHETHER ORAL OR WRITTEN, WILL NOT CREATE ANY REPRESENTATION, WARRANTY OR CONDITION OR VARY OR AMEND THIS AGREEMENT, INCLUDING THE ABOVE INCLUDED DISCLAIMER, LIABILITY EXCLUSION, LIABILITY LIMITATION, RELEASE AND INDEMNITY PROVISIONS, AND YOU MAY NOT RELY UPON ANY SUCH ADVICE OR INFORMATION.
13. FAIR ALLOCATION OF RISK AND LIABILITY. YOU ACKNOWLEDGE AND AGREE THIS AGREEMENT REPRESENTS A FAIR ALLOCATION OF RISK AND LIABILITY.
14. U.S. GOVERNMENT. The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein. Random Walk Ventures, LLC of New Hampshire.
15. EXPORT RESTRICTIONS. You acknowledge and agree that the Software is subject to restrictions and controls imposed by the Export Administration Act of 1979, as amended, and the Export Administration Regulations thereunder (“the Acts”). You agree and certify that neither the Software nor any direct product thereof is being or will be used for any purpose prohibited by the Acts. You further agree and certify that neither the Software nor any direct product thereof will be exported to [i] the following countries which are currently subject to U.S. trade embargoes: Cuba, Iran, Libya, North Korea, Sudan and Syria or [ii] persons or entities on the U.S. “Denied Persons List”, “Specially Designated Nationals List” and “Entities List”.
16. INTERNATIONAL USERS. Due to website availability, the Software can be accessed around the world and references to countries outside the United States of America (United States) do not imply that Licensor intends to license the Software in your country. Licensor controls, licenses, operates and administers the Software from the United States and makes no representation that the Software is appropriate or available outside the United States. Licensor reserves the right to block access to the Software by certain international users. If the Licensee accesses the Software from outside the United States, then the Licensee is responsible for compliance with all local laws.
17. MISCELLANEOUS.
17.1 This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof.
17.2 This Agreement shall be governed by the laws of the State of New Hampshire, without regard to its choice of law or conflicts of law principles that would require the application of law of a different jurisdiction, and applicable federal law.
17.3 The parties hereby consent to the exclusive jurisdiction and venue in the state courts in Rockingham County, New Hampshire or federal court for the U.S. District Court, Concord, New Hampshire.
17.4 The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
17.5 This Agreement may be superseded or amended only by a writing signed by both parties.
17.6 If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, any other provisions of this Agreement shall remain in full force and effect.
17.7 The controlling language of this Agreement is English. If Licensee has received a translation into another language, it has been provided for Licensee’s convenience only. The English version of this Agreement will be used when interpreting or construing the terms of this Agreement.
17.8 Any failure by either party to this agreement to enforce a specific part of the agreement in a specific situation is not a waiver of rights under the agreement. The party may still enforce the rest of the agreement in that situation and may still enforce some or all of the agreement in other situations.
17.9 The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination.
17.10 Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of Licensee’s assets to another entity.
17.11 This Agreement shall be binding upon and shall take effect to the benefit of the parties, their successors and permitted assigns.
17.12 Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
17.13 The relationship between Licensor and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind Licensor in any way.
17.14 In no case shall the Licensor’s liquidated damages exceed ten (10%) percent of the Software cost paid by Licensee, in which event, the Licensee shall have automatically terminated the contract.
17.15 If any Random Walk Ventures, LLC, and/or flexibleretirementplanner.com professional services are being provided, then such professional services are provided pursuant to the terms of a separate Professional Services Agreement between Licensee and Random Walk Ventures, LLC, and/or flexibleretirementplanner.com. The parties acknowledge that such services are acquired independently of the Software licensed hereunder, and that provision of such services is not essential to the functionality of such Software.
17.16 The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning.
17.17 Licensor may use Licensee’s name, logo or trademarks in any customer reference list, marketing materials, promotions, website pages or in any press release issued by the Licensor regarding the licensing of the Product and/or provide Licensee’s name and the names of the Software licensed by Licensee to third parties.
17.18 Confidential information that may have been given access to Licensor by the Licensee during the course of the Software implementation shall be covered by non-disclosure agreement that will survive even after the expiration or termination of this agreement.
Revision 12132013