WebAssist Software

This End-User License Agreement (the "EULA") is a legal agreement between you and WebAssist.com Corporation ("WebAssist") governing your right to use the products, services, and related media, data, and documentation, made available for download, access, and/or purchase from www.webassist.com ("Website"). By clicking "I Accept The Agreement", you are expressly agreeing to be bound by the terms of this EULA, as amended from time-to-time. If you do not agree to the terms and conditions set forth in this EULA, then DO NOT purchase the WebAssist products and/or services.

Grant of Rights

Upon purchase, you are granted a limited, personal, non-exclusive, revocable, non-transferable license to use the products and/or services you purchase. A summary of the license you receive is as follows: 1) Training (as defined below), your license is for training a single individual; 2) Solutions (as defined below), your license is for one website; and 3) for Software (as defined below), your license is a "developer" license, which enables you to use the software for multiple websites. The details of these licenses appear in the following sections of this EULA. WebAssist.com Corporation and/or its licensors retain the copyright to the Software, Solutions and Training and any other products or services provided to you under this EULA and your use of them is strictly limited. Any rights not expressly granted herein are reserved.

Refund Policy

Sales of Training and Solutions pursuant to a one-time fee and subscriptions for Training, Solutions or Software are final. Sales of Software pursuant to a one-time fee are subject to the refund policy set forth below. WebAssist may, in its sole and exclusive discretion, decide to issue a refund or exchange on a case-by-case basis.

Other Agreements

You agree to be bound by WebAssist's currently effective Terms of Service and Privacy Policy. These documents are posted on the Website and incorporated herein as part of this Agreement.

1. Definitions

(a) "Education Version" means a version of the Software, so identified, for use by students and faculty of educational institutions, only.

(b) "End User Product" means an Output File, which contains the WebAssist Run-Time, generated by you. Examples of End User Products include the courseware, presentations, demonstration files, interactive multimedia material, interactive entertainment products and the like.

(c) "WebAssist Run-Time" means that portion of the Software required in order for the End User Product to operate on hardware on which the Software itself is not resident.

(d) "Not For Resale (NFR) Version" means a version, so identified, of the Software to be used to review and evaluate the Software, only.

(e) "WebAssist" means WebAssist.com Corporation and its licensors, if any.

(f) "Output File" means an output file generated by you using the Software.

(g) "Software" means only the WebAssist software program(s) and third party software programs, in each case, supplied by WebAssist herewith, and corresponding tools, associated media, files, data, printed materials, and documentation. Any updates to such Software which you are entitled to receive and that has been provided to you by WebAssist shall also mean Software for purposes of this Agreement.

(h) "Solutions" means one or more pages that provide pre-built functionality for you to incorporate into a website.

(i) "Training" means the downloadable interactive training content, which includes example files and integrated quizzing.

(j) "Trial Version" means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software for a limited time period. The Trial Version may have limited features, may lack the ability for the end-user to save the end product, and will cease operating after a predetermined amount of time due to an internal mechanism within the Trial Version.

2. License Grants

The licenses granted granted above are subject to the following additional terms and conditions:

(a) You may install and use the Software, Solution, and/or Training on a single computer solely in the manner contemplated by the related documentation. The license granted for the Software, Solution, and/or Training may not be shared, installed or used concurrently on different computers. Except solely for purposes of installing the Software, Solution, and/or Training on a computer as described above, a license for the Software, Solution, and/or Training may not be accessed and used via a server or network storage device, including without limitation through Citrix and Citrix-type environments. Subject to the terms and conditions set forth in this EULA, you shall not have more than one installation of the Software, Solution, and/or Training on any single computer.

(b) Subject to the terms and conditions of this Agreement, in the event the Software is distributed to you along with other WebAssist software products as part of a suite of products (collectively, the "Suite"), the license of the Suite is licensed as a single product and none of the products in the Suite, including the Software, may be separated for installation or use on more than one computer.

(c) You may install and use a Solution to develop and deploy one website for one client. You may sublicense the right to use a Solution as part of the final, "live" version of a sublicensee's website solely for the purpose of providing the Solution's originally intended functionality. You must purchase an additional license to use any part of the Solution for another website or client. WebAssist and/or its licensors retain the copyright to the Solution and its use is strictly limited. Any rights not expressly granted herein are reserved.

(d) You may install and use Training on a single computer, solely for the purposes of training a single individual. You must purchase an additional license to train more than one person.

(e) You may make one copy of the Software, Solution, or Training in machine-readable form solely for backup purposes. You must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software, Solution, or Training. You may not sell, sublicense or transfer any copy of the Software, Solution, or Training. In addition, you may make copies of the End User Product, and the associated WebAssist Run-Time, and distribute those copies; provided, however, that (i) the WebAssist Run-Time may not be distributed or used other than as bundled with the Output File as part of the End User Product, and (ii) you shall require each party to whom the End User Product is distributed to agree that no title to, or ownership rights in, the WebAssist Run-Time are transferred and that the End User Product, including the WebAssist Run-Time, shall not be reverse compiled or disassembled. In addition, you may not distribute an End User Product the purpose of which is to replay the courseware, presentations, interactive multimedia material, interactive entertainment products and the like of others.

(f) You agree that WebAssist may examine your computer equipment and audit your use of the Software, Solution, or Training for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software, Solution, or Training by you other than in full compliance with the terms of this Agreement, you shall reimburse WebAssist for all reasonable expenses related to such audit in addition to any other costs and damages that WebAssist may incur as a result of such non-compliance.

(g) Unless otherwise set forth in the documentation relating to such code and/or the Software or in a separate agreement between you and WebAssist, you may modify the source code form of those portions of such software programs that are identified as sample code, sample application code, or components (each, "Sample Application Code") in the accompanying documentation solely for the purposes of designing, developing and testing your websites and website applications developed using WebAssist software programs; provided, however, you are permitted to copy and distribute the Sample Application Code (modified or unmodified) only if all of the following conditions are met: (1) you distribute the compiled object Sample Application Code solely with your application; (2) you do not include the Sample Application Code in any product or application designed for website development; and (3) you do not use WebAssist's name, logos or other WebAssist trademarks to market your application. You agree to indemnify, hold harmless and defend WebAssist from and against any loss, damage, claims or lawsuits, including attorney's fees, that arise or result from the use or distribution of your application.

(h) Your license rights under this EULA are personal, non-transferable, and non-exclusive.

(i) Mandatory Product Activation. The license rights granted under this Agreement require you to supply information required to activate your licensed copy in the manner described during the setup sequence of the Software. You may need to activate the Software through the use of the Internet or telephone; toll charges may apply. There are technological measures in this Software that are designed to prevent unlicensed or illegal use of the Software. You agree that WebAssist may use those measures and you agree to follow any requirements regarding such technological measures. You may also need to reactivate the Software if you modify your computer hardware, alter the Software, or install the Software on another computer. Product activation is based on the exchange of information between your computer and WebAssist.

3. License Restrictions

(a) Other than as set forth in Section 2, you may not make or distribute copies of the Software, Solution or Training, or electronically transfer or access the Software, Solution, or Training, from one computer to another or over a network.

(b) You may not alter, merge, modify, adapt or translate the Software, Solution, or Training or decompile, reverse engineer, disassemble, or otherwise reduce the Software, Solution, or Training to a human-perceivable form.

(c) Unless otherwise expressly provided herein, you may not rent, lease, or sublicense the Software, Solution, or Training.

(d) You may not transfer the Software, Solution or Training or any rights under this EULA to any other person or entity.

(e) Unless otherwise expressly provided herein, you may not modify the Software, Solution or Training or create derivative works based upon the Software, Solution, or Training.

(f) Education Versions may not be used for, or distributed to any party for, any commercial purpose.

(g) Unless otherwise expressly provided herein, you shall not (A) in the aggregate, install or use more than one copy of the Trial Version of the Software, (B) download the Trial Version of the Software under more than one username, (C) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, (D) disclose the results of software performance benchmarks obtained using the Trial Version to any third party without WebAssist's prior written consent, or (E) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a license to a commercial or education version of the software; provided, however, notwithstanding the foregoing, you are strictly prohibited from installing or using the Trial Version of the Software for any commercial training purpose.

(h) You may only use the Not for Resale Version of the Software to review and evaluate the Software.

(i) You may not export the Software, Solution, or Training into any country prohibited by the United States Export Administration Act and the regulations thereunder.

(j) You may receive the Software, Solution,or Training in more than one medium but you shall only install or use one medium. Regardless of the number of media you receive, you may use only the medium that is appropriate for the server or computer on which the Software, Solution, or Training is to be installed.

(k) You may receive the Software, Solution, or Training in more than one platform but you shall only install or use one platform.

(l) You shall not use the Software, Solution, or Training to develop any product having the same primary function as the Software, Solution, or Training.

(m) In the event that you fail to comply with this EULA, WebAssist may terminate the license and you must destroy all copies of the Software, Solution, or Training (with all other rights of both parties and all other provisions of this EULA surviving any such termination).

(n) You may receive the Software, Solution, or Training in more than one language but you shall only install or use one language version.

4. Fees and Related Terms

(a) If your license to the Software, Solution or Training is pursuant to a one-time fee, you agree to pay to WebAssist the then-current price for such Software, Solution, or Training. If your license to the Software, Solution or Training is pursuant to a subscription, you agree to pay to WebAssist the then-current subscription fees for such Software, Solution, or Training.

(b) Changes to Subscription Fees. WebAssist may change the amount of any subscription fees due WebAssist for use of the Software, Solution or Training upon thirty (30) days prior written notice to you. Any such price change will not apply until the next monthly renewal of the subscription after the expiration of the thirty-day notice period.

(c) Taxes. Each party shall be solely responsible for paying or withholding any taxes imposed by the applicable taxing authority. If you are required by any applicable law to withhold taxes from any payment due WebAssist under this Agreement, then you will deliver to WebAssist a receipt or similar documentation evidencing payment of any such withholding tax.

(d) Late Payments. All payments due WebAssist which are not paid when due shall accrue late payment charges on the unpaid amount in the amount of one and one-half percent (1.5%) per month or the maximum amount allowable under applicable law, whichever is less, from the date due until the date paid in full.

(e) User Name. You shall be responsible for all activities conducted under any user name and/or password for the Software, Solution, or Training, whether or not such activities were approved or authorized by you.

5. Upgrades

Except if the Software is an Education Version:

If this copy of the Software is an upgrade from an earlier version of the Software, you must possess a valid full license to a copy of an earlier version of the Software used to upgrade to this upgrade copy in order to install and/or use this upgrade copy. You may continue to use each earlier version copy of the Software to which this upgrade copy relates on your computer after you receive this upgrade copy, provided that, (i) the upgrade copy and the earlier version copy are installed and/or used on the same computer only and the earlier version copy is not installed and/or used on any other computer; (ii) you comply with the terms and conditions of the earlier version's end user license agreement with respect to the installation and/or use of such earlier version copy; (iii) the earlier version copy or any copies thereof on any computer are not transferred to another computer unless all copies of this upgrade copy on such computer are also transferred to such other computer; (iv) the earlier version copy or any copies thereof are not transferred to any other party; and (v) you acknowledge and agree that any obligation WebAssist may have to support and/or offer support for the earlier version of the Software may be terminated upon availability of the upgrade.

If the Software is an Education Version:

If this copy of the Software is an upgrade from an earlier version of the Software, you must possess a valid full license of an earlier version of the Software to obtain an upgrade copy, and the upgrade copy is provided to you on a license exchange basis. You agree by your installation and use of such copy of the Software to voluntarily terminate your earlier EULA and uninstall, destroy and cease using the earlier version of the Software.

6. Prior Same Version License and Exchanges

If this copy of the Software is licensed as part of the Suite (as defined above), and you have a prior license to the same version of the Software, and the Suite was licensed to you with a discount based, in whole or in part, on your prior license to the same version, the Software is provided to you on a license exchange basis. You agree by your installation and use of this copy of the Software to voluntarily terminate your EULA with respect to such prior license and that you will not continue to install or use such prior license of the Software or transfer it to another person or entity.

If this copy of the Software ("New License") has been acquired via a permitted exchange (other than in connection with an upgrade) with a different type of Software license previously acquired by you ("Old License") (e.g. Education Version license for a Commercial Version license, where permitted), you must possess a valid full license to a copy of such Old License in order to install and/or use this New License, and the New License is provided to you on a license exchange basis. You agree by your installation and/or use of such copy of the New License to voluntarily terminate your earlier EULA to the Old License and uninstall, destroy and cease using the Old License. You agree to not transfer the Old License to another person or entity.

7. Ownership

The foregoing license gives you limited license to use the Software, Solution, or Training. WebAssist and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software, Solution, or Training (as an independent work and as an underlying work serving as a basis for any application you may develop), and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by WebAssist and its suppliers.

8. LIMITED WARRANTY AND DISCLAIMER

(a) Except with respect to any Sample Application Code, Trial Version and Not For Resale Version of the Software, Solution, or Training, WebAssist warrants that, for a period of thirty (30) days from the date of your first installation of the Software, Solution, or Training: (i) when used with a recommended hardware configuration, the Software, Solution, or Training will perform in substantial conformance with the documentation supplied with the Software, Solution, or Training; and (ii) the physical media on which the Software, Solution, or Training is furnished will be free from defects in materials and workmanship under normal use.

(b) In accessing the Software, Solution, or Training via the WebAssist website or if WebAssist makes updates to the Software, Solution, or Training available via its website, then WebAssist makes no representations or warranties regarding the accessibility and/or availability of the Software, Solution, or Training and all updates.

(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, WEBASSIST MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, SOLUTION, OR TRAINING, OR ANY PORTION THEREOF, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST INFRINGEMENT. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND.

(d) WEBASSIST DOES NOT WARRANT THAT THE SOFTWARE, SOLUTION, OR TRAINING, OR WEBASSIST’S WEBSITE USED TO ACCESS THE SOFTWARE, SOLUTION, OR TRAINING, IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE, SOLUTION, OR TRAINING, IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. WEBASSIST SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.

(e) IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, SOLUTION, OR TRAINING, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF FIRST INSTALLATION.

(f) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WEBASSIST, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.

9. Exclusive Remedy

Provided that any non-compliance with the above warranty is reported in writing to WebAssist no more than thirty (30) days following delivery to you, WebAssist will use reasonable commercial efforts to supply you with a replacement copy of the Software, Solution, or Training that substantially conforms to the documentation, provide a replacement for defective media, or refund to you the amounts paid by you to WebAssist for the Software, Solution, or Training at its option. In the event of a refund, this EULA will terminate, in which case, you must cease all use of the Software, Solution, or Training and uninstall, delete and destroy all copies of the Software, Solution, or Training. WebAssist shall have no responsibility if the Software, Solution, or Training has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software, Solution, or Training with other than a recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of the Software, Solution, or Training will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE, SOLUTION, AND TRAINING, AND RELATED DOCUMENTATION.

10. LIMITATION OF LIABILITY

(a) NEITHER WEBASSIST NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE, SOLUTION, OR TRAINING AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF WEBASSIST OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b) EXCEPT WHERE EXPRESSLY PROHIBITED BY LAW, WEBASSIST'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $100 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE, SOLUTION, OR TRAINING THAT CAUSED SUCH DAMAGE.

(c) THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.

11. Basis of Bargain

The Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability set forth above are fundamental and material elements of the basis of the agreement between WebAssist and you. WebAssist would not be able to provide the Software, Solution, or Training on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability inure to the benefit of WebAssis and its licensors and suppliers.

12. U.S. Government Restricted Rights

U.S. Government Restricted Rights. The Software, Solution, and/or Training licensed under this EULA is commercial computer software. For purposes of this EULA, "commercial computer software" means software developed or regularly used for nongovernmental purposes which (i) has been sold, leased, or licensed to the public, (ii) has been offered for sale, lease or license to the public; (iii) has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this EULA; or (iv) satisfied a criterion expressed in (i), (ii), or (iii) of this clause and would require only minor modification to meet the requirements of this EULA. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this EULA as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this EULA as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFAR”) and its successors. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFAR, or other clause or provision that addresses Government rights in computer software or technical data under this EULA. Manufacturer is WebAssist.com Corporation 8899 University Center Lane, Suite 330, San Diego, California 92122.

13. Third Party Software

The Software, Solution, or Training may contain third party software that requires notices and/or additional terms and conditions. Such required third party notices and/or additional terms and conditions are made a part of and incorporated by reference into this EULA. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein.

14. General

This EULA shall be governed by the internal laws of the State of California, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state and federal courts located in San Diego County, California to resolve any disputes arising under this EULA in that you confirm that this EULA was entered into in the State of California, San Diego County, and was performed therein. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.

This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. Any varying or conflicting terms contained in any document that are incorporated by reference into this agreement shall be superseded by the terms in this agreement. The failure or delay of WebAssist to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.

No WebAssist dealer, agent or employee is authorized to make any amendment to this EULA unless such amendment is in writing and signed by a duly authorized representative of WebAssist.

If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.

You may not assign this EULA nor any rights or obligations under this EULA in whole or in part without the prior written consent of WebAssist.

All questions concerning this EULA shall be directed to: WebAssist.com, Corp., 8899 University Center Lane, Suite 330, San Diego, CA 92122, Attention: General Counsel.

WebAssist and other trademarks contained in the Software, Solution, and Training are trademarks or registered trademarks of WebAssist.com, Corp. in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software, Solution, or Training. This EULA does not authorize you to use WebAssist's or its licensors' names or any of their respective trademarks.