BENESAN CORPORATION USER AGREEMENT
IMPORTANT - READ CAREFULLY
THIS USER AGREEMENT (THIS "AGREEMENT") IS A LEGAL AND BINDING CONTRACT BETWEEN YOU, THE USER, AND BENESAN CORPORATON ("BENESAN") GOVERNING YOUR ACCESS TO AND USE OF BENESAN'S WEBSITE LOCATED AT www.ADLware.com (THE "WEBSITE") AND OF BENESAN'S ADLWARE SOFTWARE LOCATED AT my.ADLware.com/<companyID> (AS FURTHER DEFINED BELOW, THE "SOFTWARE" OR "ADLWARE").
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING AND USING THE WEBSITE AND BY INSTALLING AND USING ADLWARE, YOU INDICATE YOUR ACCEPTANCE OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, YOU MUST PROMPTLY (A) DELETE THE SOFTWARE FROM ANY AND ALL OF YOUR COMPUTERS ON WHICH IT IS INSTALLED AND DESTROY ALL COPIES OF ADLWARE IN YOUR POSSESSION AND ALL ACCOMPANYING MATERIALS, INCLUDING PACKAGING AND DOCUMENTATION, AND (B) CEASE ALL OF YOUR USE OF THE WEBSITE.
THIS AGREEMENT APPLIES TO THAT VERSION OF ADLWARE THAT YOU HAVE LICENSED, WHETHER OBTAINED BY YOU DIRECTLY FROM BENESAN THROUGH THE WEBSITE, OR FROM AN AUTHORIZED BENESAN RESELLER. ADLWARE IS LICENSED, NOT SOLD. YOU MAY USE ONLY THE VERSION OF ADLWARE THAT YOU HAVE LICENSED FROM BENESAN AND HAVE PAID FOR, AND MUST USE IT STRICTLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. DEFINITIONS. 1.1 "Client Computer" shall mean any computer on which ADLware Client is installed.
1.2 "ADLware QB Integration" shall mean the client interface component of Benesan’s ADLware software which is installed on a Client Computer.
1.3 "ADLware Server" shall mean the server component of Benesan’s ADlware software which is installed on BENESAN's host server and is accessible by using either the ADLware QB Integration or a web browser.
1.4 "Software" or "ADLware" shall mean BENESAN's ADLware software collectively (including ADLware iPhone App, QB Integration, and ADLware Server), and each separate component of the foregoing individually, any updates, upgrades or enhancements to the Software or a Software component provided to you by BENESAN, including, without limitation, any support software provided to you by BENESAN via the Internet or by any other means.
3. LICENSE RESTRICTIONS. Notwithstanding anything to the contrary herein, the license grants of Section 2 are subject to the following restrictions:
3.1 Representations. You certify that if you are an individual (i.e., not a corporation) you are at least 18 years of age. You also certify that you are legally permitted to use the services and access the website, and you take full responsibility for the selection and use of the services and access of the website. This Agreement is void where prohibited by law, and the right to access ADLware and the website is revoked in such jurisdictions. You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access or otherwise use ADLware, including, without limitation, modems, hardware, software, and long distance or local telephone service. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Services.
3.2 Derivative Works. You may not modify or make derivative works of the ADLware QB Integration, the documentation thereof, or any other component that may be included in the Software or provided with the Software, nor rent, lease or otherwise distribute the Software or the documentation thereof.
3.3 Transfer of Rights. You shall not assign, sublicense, rent or otherwise transfer your access and use rights under this Agreement regarding ADLware without the prior written approval of BENESAN.
3.4 Reverse Engineering and Software Development. You may not reverse engineer, decompile, or disassemble ADLware, directly or indirectly, in whole or in part. Furthermore, ADLware shall only be used in accordance with the accompanying documentation and shall not be used for software development.
3.5 Ownership. All worldwide ownership of and all rights, title and interest in and to ADLware, and all copies and portions thereof, including without limitation, all copyrights, patent rights, trademark rights, trade secret rights, inventions and other proprietary rights therein and thereto, are and shall remain exclusively in BENESAN and its licensors. The only rights you acquire under this Agreement are the licenses set forth in this Agreement.
3.6 Other Restrictions. You may not use ADLware or the Website to: (a) defame, abuse, harass, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; (b) conduct or forward illegal contests, pyramid schemes, chain letters, unsolicited or unauthorized advertising, promotional materials, unsolicited e-mail or multi-level marketing campaigns; (c) publish, post, distribute, disseminate or link to any: (i) defamatory, infringing, or unlawful topic, name, material or information; (ii) software or other material protected by intellectual property laws, copyright licenses, rights of privacy or publicity, or other proprietary rights, unless you own, control such rights or have received all necessary consents for your use of such software and other materials; (d) harvest user names or email addresses for any purpose; (e) restrict or inhibit any other user from using and enjoying its rights with respect to ADLware or the Website, interfering with or disrupting the Website, the ADLware service servers or network connected to ADLware; or (f) violate any applicable government laws or regulations.
4. USE OF BENESAN. BENESAN has no special relationship with or fiduciary duty to you. You acknowledges that BENESAN has no control over, and no duty to take any action regarding: what you access via ADLware; what effects the content you access may have on you; how you may interpret or use the content; or what actions you may take as a result of having been exposed to the content. You are solely responsible for your activities in using the ADLware services including the activities of you employees, contractors and all parties that you allow to have access to ADLware. You are solely responsible for the contents, modification, management and/or deletion of any and all files and data used by you in conjunction with ADLware. Further, you are responsible to ensure that such files and data are not used in conjunction with ADLware in violation of any copyright or any other proprietary right of any third party. BENESAN may access your account, including its data, to respond to service or technical problems or as stated in this Agreement. You, not BENESAN, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all data stored in your account. Furthermore, BENESAN shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any data.
5. USE OF COMMUNICATION SERVICES. The Website contains bulletin board services, forums, communities, personal web pages, electronic mail postings and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services"). You agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service, and to comply in your use of the Communication Services with all applicable laws and regulations and the terms and conditions of this Agreement, including, but not limited to, Section 3.5. In addition, you agree that when using a Communication Service, you shall not: (a) Restrict or inhibit any other user from using and enjoying its rights in the Communication Services; (b) Upload, post or otherwise transmit (including by linking to websites that so upload or post) files that contain viruses, spyware, worms, Trojan horses, or any other programs that may damage the operation of anyone's computer, are designed to program anyone's computer to perform any function which is unwanted by its owner, are designed to collect or transmit any information about a computer's owner without his or her knowledge, or are designed to perform any other illegal or illicit function; (c) Impersonate any person or entity, including BENESAN, BENESAN employees or other industry professionals; (d) Use racially, ethnically, or otherwise offensive language; (e) Violate any code of conduct or other guidelines that may be applicable for any particular Communication Service; or (f) Link the Communication Services to any unsolicited communication sent to any third party, or otherwise use or mention the Communications Services in connection with any such unsolicited communication. BENESAN is not a publisher of information and material posted by users of the Communication Services ("User Content"). Accordingly, BENESAN has no more editorial control over such content than does a library or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available as part of such User Content are those of the respective users and not of BENESAN. BENESAN does not guarantee the accuracy, completeness, or usefulness of any User Content, nor its merchantability or fitness for any particular purpose. Under no circumstances will BENESAN be liable for any loss or damage caused by your reliance on any User Content. It is your responsibility to evaluate the accuracy, completeness and/or usefulness of any User Content. You agree that any User Content is provided by you on a non-proprietary and non-confidential basis.
6. ACCESS RESTRICTION. BENESAN reserves the right to deny to any user, in its sole discretion, access to ADLware or any portion thereof without notice. You are responsible for safeguarding the confidentiality of your password(s) and user name(s) created by you for use with ADLware, and for any use or misuse of your ADLware account resulting from any third party using a password or user name created by you.
7. WARRANTY DISCLAIMER. THE SOFTWARE, THE WEBSITE AND ALL OF THE CONTENTS THEREOF ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED, IMPLIED OR STATUTORY, AND BENESAN HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS, WITH RESPECT THE WEBSITE AND ALL CONTENTS THEREOF, BENESAN, THE ACCOMPANYING DOCUMENTATION, AND ANY ACCOMPANYING SUPPORTING MATERIALS. YOU EXPRESSLY ACKNOWLEDGE THAT THE WEBSITE AND/OR THE SOFTWARE MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. NO EMPLOYEE, AGENT, RESELLER, DEALER OR DISTRIBUTOR IS AUTHORIZED TO MODIFY THIS LIMITED WARRANTY OR TO MAKE ANY ADDITIONAL WARRANTIES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
8. LIABILITY DISCLAIMER; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. YOU ARE SOLELY RESPONSIBLE FOR INPUTS INTO THE SOFTWARE, VERIFYING THE RESULTS OF THE USE OF THE SOFTWARE AND HOW THE OUTPUT FROM THE SOFTWARE IS USED BY YOU. BENESAN SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY FOR THE RESULTS OR WORK PRODUCT OBTAINED FROM YOUR USE OF THE SOFTWARE. IN NO EVENT SHALL BENESAN OR ITS SUPPLIERS OR LICENSORS BE LIABLE OR OBLIGATED TO YOU IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY, CONSEQUENTIAL, INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST DATA OR PROGRAMS, BUSINESS INTERRUPTIONS, LOST PROFITS AND LOST REVENUE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF BENESAN IS AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, BENESAN SHALL NOT BE LIABLE TO YOU IN AN AMOUNT IN THE AGGREGATE GREATER THAN THE AMOUNT THAT RECEIVED BY BENESAN FOR THE SOFTWARE LICENSED BY YOU. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
9. INDEMNIFICATION. You agree to defend, indemnify and hold harmless BENESAN, and its employees, officers, directors, licensors and affiliates from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys' fees) arising from your violation of any warranty, representation or covenant under this Agreement, your infringement of any third-party's rights, (including, without limitation, infringement of any copyright, violation of any proprietary right and invasion of any privacy rights), and/or the use or misuse of your ADLware account by you or any third party using your password(s) and/or user name(s). These obligations will survive any termination of your relationship with BENESAN.
10. US GOVERNMENT RESTRICTED RIGHTS. If you are the United States Government or are acquiring the right to access and use ADLware on behalf of the United States Government, then the United States Government agrees that: (a) if the right to access and use ADLware is acquired by or supplied to the Department of Defense ("DOD"), ADLware shall be classified as "Commercial Computer Software" and the government is acquiring only "restricted rights" in ADLware and its documentation, as defined in Clause 252.227-7013(c)(1) of the DFARS; (b) for any part of the United States Government other than DOD, the government's rights in ADLware and its documentation will be as defined in Clause 52.227-19(c)(2) of the FAR or, for NASA, in Clause 18-52.227-86(d) of the NASA Supplement to the FAR.
11. TERMINATION. The license granted herein is effective until this Agreement is terminated. This Agreement shall terminate immediately, without notice, in the event you (i) fail to comply with any of the terms and conditions set forth in this Agreement, (ii) being a business entity, you cease doing business, (iii) BENESAN does not receive in a timely manner (whether from you or a from a reseller responsible to collect your payment and remit it to ADLware) any payment owing under your ADLware account, or (iv) you cease using ADLware service and notify BENESAN thereof. ADLware reserves the right to refuse service to anyone at its sole discretion and to terminate this Agreement immediately. ADLware does not refund any part of the payment made by you for your monthly or annual subscription. Upon termination you must immediately (y) cease all of you use of the Website, and (z) (i) destroy all copies of the Software and Software documentation in your possession, or (ii) return the Software and documentation according to the instructions of BENESAN. . Upon termination by BENESAN will close your account and delete all your data within seven (7) days of termination. BENESAN shall have no obligation to maintain any data stored in your account or to forward any data to you or any third party.
12. DATA AVAILABILITY: Company currently provides to the Customer several mechanisms to restore data from the software. In the exceptional event of shutdown of operations, Company will notify the Customer in advance and allow 7 days for it to retrieve its data from the Company servers.
13. THIRD-PARTY WEB SITES. The Website may contain links to third-party web sites that may be framed within the Website, but these are not under BENESAN's control. Please note that when you click on these links you are moving to another website. BENESAN makes no representations about third-party websites. When you access a third party website, you do so at your own risk. BENESAN is not responsible for the reliability of any data, programs, opinions, advice, or statements made on third-party websites. BENESAN provides these links merely as a convenience. The inclusion of such links does not imply that BENESAN endorses, recommends, or accepts any responsibility for the content of such sites.
14. THIRD-PARTY PRODUCTS AND SERVICES. The Website may contain mention of third-party products and services for informational purposes. BENESAN makes no recommendations or endorsements about third-party products and services. References to third-party services and products are provided by BENESAN "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING, BUT WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
16. TRADEMARKS. BENESAN, ADLware, ADLware QB Integration and their respective designs, trademarks and logos are trademarks or registered trademarks of BENESAN, Inc. All other trademarks and/or service marks are the property of their respective owners.
17. COPYRIGHT MATTERS. BENESAN respects the intellectual property of others, and we ask you to do the same. We reserve the right to disable the accounts of users who we believe to be infringing the intellectual property rights of others and to remove any such infringing materials. If you believe that your copyrighted work has been copied and is accessible on the Website in a way that constitutes copyright infringement, please notify BENESAN's copyright agent by email at
18. GENERAL. This Agreement embraces the full, complete understanding of the parties as to the subject matter hereof, and may not be altered or modified, except by written amendment or collateral agreement which expressly refers to this Agreement and which is duly executed by BENESAN and your duly authorized representative. All prior representations, understandings and agreements regarding the subject matter hereof whether written or oral, expressed or implied, are superseded and shall be of no effect. In the event of conflicting provisions between this Agreement and a duly executed collateral agreement, the duly executed collateral agreement shall control. This Agreement shall be construed and governed in accordance with the laws of the state of California, excluding the application of its conflicts of law rules. You acknowledge that a breach of this Agreement will cause irreparable and continuing damage to BENESAN for which money damages are insufficient, and BENESAN shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including money damages if appropriate). In the event of litigation between you and BENESAN concerning the Software or any other item which is subject to this Agreement, the prevailing party in the litigation will be entitled to recover attorney fees and expenses from the other party. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export law, restrictions or regulations. No waiver by BENESAN of any breach or default by you of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default. BY ACCESSING AND USING THE WEBSITE AND BY INSTALLING, ACCESSING AND USING BENESAN, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE UNCONDITIONALLY TO BE BOUND BY ITS TERMS AND CONDITIONS.
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