THIS AGREEMENT is a Product License Agreement ("Agreement") between you, an individual or organization ("Licensee") and Quentin Sager Consulting, Inc., a Florida corporation ("Licensor").
For the purposes of this Agreement, "Database" shall mean the database or data product produced by or for Quentin Sager Consulting listed on an approved Quentin Sager Consulting order form, purchase order or similar document by the Licensee.
By downloading the Database from a Quentin Sager Consulting owned, operated, controlled, or approved web site or server, you ("Licensee") accept the terms and conditions of this Agreement. If you are accepting these terms on behalf of another person or legal entity, you represent and warrant that you have full legal authority to accept on behalf of and bind that person or legal entity to these terms.
Grant of License
Quentin Sager Consulting grants Licensee the non-exclusive, non-transferable, non-assignable, limited right to use, display, duplicate and distribute the Database as expressly permitted by this Agreement. This License does not preclude the execution of additional license agreements with the Licensee for the Database.
Licensee may: (a) use the Database in accordance with the terms of this Distribution License; (b) make multiple copies of the Database for backup or archival purposes; (c) place the Database on a Local Area Network, Wide Area Network, Intranet, server, internal web site, mainframe, Operations Support System or other electronic computing platform shared or accessible to employees of Licensee; (d) use the Database, in whole or in part, or as part of a new or existing application or derivative work, simultaneously by an unlimited number of employees of Licensee; (e) incorporate the Database, in whole or in part, as a value-added and/or integral component of a new or existing Licensee for profit application, service, or product for distribution outside of Licensee's organization; (f) modify, adapt, or translate the Database in whole or in part as needed to operate with Licensee's application, service, or product; and (g) make and sell, royalty free, unlimited copies of the Licensee application, service, or product containing, in whole or in part, the Database for use by Licensee's end user customers.
Permission to distribute the Database, in whole or in part, as-is and/or as part of a derivative work, within Licensee's organization, is specifically granted by this Distribution License.
Permission to distribute the Database, in whole or in part, as a value-added and/or integral component of a new or existing Licensee for profit application, service, or product, outside of Licensee's organization is specifically granted by this Distribution License.
Distribution of Licensee's for profit application, service, or product incorporating the Database through Licensee's own third party distributors, OEM vendors, and similar business partners is permitted, provided Licensee ensures such entities comply with the obligations of this Agreement.
Licensee may NOT: (a) use, copy, or distribute the Database except as provided in this Distribution License; (b) modify, adapt, or translate the Database in whole or in part, except as provided in this Distribution License; or (c) copy and/or distribute the Database outside of Licensee's organization, in whole or in part, except as a value-added and/or integral component of the Licensee's own application, service, or product; (d) incorporate the Database into a Freeware, Shareware, Open Source, or similar freely distributed type vehicle, application, service, or product; (e) incorporate the Database into an Internet based lookup, service, or similar vehicle that freely discloses the Database and/or its content in whole or part (for the avoidance of doubt, this does not prohibit use of the Database in a cloud-based Software as a Service offering for which license fees are charged on a per hit or other basis); and (f) incorporate the Database into a new or existing application, product, or service that is in or creates direct market competition to those same or similar products produced by or for Quentin Sager Consulting.
Fees and Payments
(a) The license fees are based on an annual subscription to, and update frequency, monthly or quarterly, of the Database. (b) Licensee shall pay to Quentin Sager Consulting an annual fee in United States dollars for the license granted. The annual fee shall be paid in full prior to downloading the Database. Alternatively, for approved purchase orders, Licensee shall pay the annual fee in full within thirty (30) days of receipt of invoice. Past due accounts are subject to product download restriction or denial.
Quentin Sager Consulting Obligations
(a) Quentin Sager Consulting shall provide Licensee with one (1) digital copy of the Database (the "Current Version") by means of Internet download from a Quentin Sager Consulting owned, operated, controlled, or approved web site or server, at the frequency indicated on the Quentin Sager Consulting order form, Licensee purchase order, or similar instrument.
(b) Quentin Sager Consulting shall provide Licensee instructional information deemed reasonable and customary to facilitate use or interpretation of the Database.
Ownership & Copyright
The Quentin Sager Consulting Database is licensed not sold. All intellectual property rights, title and interest in the Database furnished to Licensee remain in Quentin Sager Consulting.
The Database is copyrighted and protected by United States copyright laws and international treaty provisions. Licensee agrees: (a) not to remove any copyright notice from the Database; (b) to reproduce all such notices on any authorized copies Licensee makes; and (c) to use commercially reasonable efforts to prevent any unauthorized copying and/or distribution of the Database.
Limited Warranty and Disclaimer of Warranties
(a) Quentin Sager Consulting warrants that the physical media, if any, furnished here-under shall be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of delivery. Licensee's sole and exclusive remedy shall be the replacement of such defective media by Quentin Sager Consulting.
(b) Quentin Sager Consulting warrants it is the author of the Database, an original work, and that it has the right to provide the Database in accordance with the terms and conditions of this Agreement and such product(s) shall not infringe the copyright nor improperly provide or infringe the trade secret of any third party.
(c) Except as otherwise set forth herein, Quentin Sager Consulting makes no representations and extends no warranties of any kind and assumes no responsibility for liability with respect to the use, sufficiency or accuracy of the Database.
(d) THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, EVEN IF QUENTIN SAGER CONSULTING HAS BEEN MADE AWARE OF SUCH PURPOSE.
Limitation of Liability
The entire and exclusive liability and remedy for breach of the limited warranty shall be limited to replacement of defective media or documentation, or refund of fees paid for non-conforming products, and shall not include or extend to any claim for or right to recover any other damages, including but not limited to, loss of profit, data, or use of the Database or special, incidental or consequential damages, or other similar claims, even if Licensor has been specifically advised of the possibility of such damages. In no event will either party's liability for any damages to the other party or any third party ever exceed the license fees actually paid by Licensee during any one year of this Agreement, regardless of the form of the claim.
The term of this Agreement shall be perpetual, effective, unless specified on this document, the earlier, date of download of the Database, date of payment of licensing fees by Licensee, or receipt of invoice for the Database by Licensee.
Licensee may terminate this Distribution License at any time. Quentin Sager Consulting will immediately terminate this Distribution License and Licensee's right to use the Database without written notice upon Licensee's failure to materially comply with any provision of this Distribution License. If this Distribution License is terminated for any reason, Licensee will: (a) cease all use of the Database; and (b) delete the Database and all copies under Licensee power, possession, or control.
Government Restricted Rights
The Database is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States 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 subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19, as applicable. Manufacturer is Quentin Sager Consulting, 1589 S Wallace Point, Crystal River, FL 34429 USA.
Export/Reexport of Technical Data
Licensee acknowledges that any commodities and/or technical data provided under this Agreement shall be subject to the Export Administration Regulations ("the EAR") administered by the U.S. Commerce Department and that any export or reexport thereof must be in compliance with the EAR. Licensee agrees that it shall not export or reexport, directly or indirectly, either during term of the Agreement or after its expiration, any commodities and/or technical data (or direct products thereof) provided under this Agreement in any form to destinations in Country Groups D:1 or E:2, as specified in Supplement No. 1 to Part 740 of the EAR, (http://www.access.gpo.gov/bis/ear/ear_data.html) and as modified from time to time by the U.S. Department of Commerce, or to destinations and or entities that are otherwise controlled or embargoed under U.S. law.
Neither party may assign this Agreement without the prior written consent of the other party, except that either party may, without the consent of the other, assign the Agreement to a purchaser of all or substantially all of that party's assets used in connection with performing this Agreement, provided the assigning party guarantees the performance of and causes the assignee to assume in writing all obligations of the assignor under this Agreement. The rights and obligations of this Agreement shall bind and benefit any successors or assigns of the parties.
The failure of either party at any time to enforce any provision of this Agreement will not be construed as a waiver of the provision nor affect the validity of this Agreement.
Non-Compliance for Cause Beyond Control
Neither party shall be liable to the other for non-compliance with any provision of this Agreement if the non-compliance resulted directly from any cause beyond the reasonable control of the party. However, this provision shall not apply to any payments due to Quentin Sager Consulting, Inc. under this Agreement.
If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall not be affected.
This Agreement must be construed and enforced according to the substantive laws of the State of Florida without giving effect to the conflict of laws principles thereof.
The terms and conditions of this Agreement regarding payment, warranties, liability and all others that by their sense and context are intended to survive termination or expiration of this Agreement, shall survive and continue in effect.
Last updated: March 30, 2012