ThermiWow! for Your Website Software End User License Agreement
This software end user license agreement (the “Agreement”) is entered into by and between Candace Crowe, Inc., a Florida corporation, d/b/a Candace Crowe Design, whose current mailing address is 3452 Lake Lynda Drive, Suite 160, Orlando, Florida 32817 (“CCD”), and (“Licensee”):
- ThermiWow! CCD hereby grants to Licensee a nonexclusive right to use and display the Software on their website. The client understands that any web hosting services require a separate contract with a web hosting service. CCD does not warrant that the functions contained in these web pages or the Internet website will meet the client’s requirements or that the operation of the web pages will be uninterrupted or error-free. The entire risk as to the quality and performance of the web pages and website is with client. In no event will CCD be liable to the client or any third party for any damages, including any lost profits, lost savings, or other incidental, consequential, or special damages arising out of the operation of or inability to operate these web pages or website, even if CCD has been advised of the possibility of such damages.
- TERM. CCD may terminate this Agreement immediately if Licensee should file for bankruptcy or fail to comply with any term or condition of this Agreement. In such event, no notice shall be required by CCD to effect such termination. Upon termination of this Agreement, all rights granted to Licensee under this Agreement shall forthwith terminate and immediately revert to CCD.
- OWNERSHIP OF SOFTWARE. (a) Licensee acknowledges and understands that CCD is the owner of all right, title, and interest, including all patent, trademark, and copyright rights therein, to the Software, including all modifications and updates, regardless of the media or form in which the original disk or copies may exist, and that Licensee, through this Agreement or otherwise, does not acquire any ownership rights to the Software. Nothing contained in this Agreement is intended to grant to Licensee any intellectual property rights in the Software. Licensee acknowledges that the Software is entitled to protection under the copyright laws of the United States, and agrees that it shall not remove any copyright or other proprietary notices from the Software. Licensee further acknowledges that the existence or lack of a copyright notice shall not cause the Software to be in the public domain or to be other than an unpublished work with all rights reserved under the copyright laws. (b) Licensee acknowledges that all copyright, patent, trademark, trade secret, confidential information, and other intellectual and proprietary rights in the Software are, and shall remain, the valuable property of CCD. Licensee agrees not to sell, assign, lease, license, disclose, give, or otherwise transfer the Software or any copy thereof to any third party.
- LIMITED WARRANTY. In no event will CCD be liable to Licensee for damages, whether based on contract, tort, warranty, or other legal or equitable grounds, including any loss of profits, lost savings, or other incidental or consequential damages arising out of Licensee’s use or inability to use the Software. The entire risk as to the quality and performance of the Software is with Licensee, who shall be obligated to test the Software to ensure that it operates in accordance with Licensee’s specifications. Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to Licensee. This warranty gives Licensee specific legal rights, and Licensee may also have other rights that vary from state to state.
- ACKNOWLEDGEMENT AND ACCEPTANCE OF AGREEMENT; SOFTWARE. (a) Licensee hereby acknowledges that Licensee has had an opportunity to consult with legal counsel concerning this Agreement and Licensee has fully reviewed this Agreement and understands its terms. CCD will make every reasonable effort to assure the accuracy of the material produced. However, CCD is not responsible for the correctness of copy, illustrations, photography, trademarks, nor for obtaining clearances or approvals, all of which is the responsibility of Licensee. In addition, Licensee shall be responsible for compliance with the Health Insurance Portability & Accountability Act of 1996 ("HIPAA") as to any patient information disclosed under the terms of this Agreement. (b) Photography and illustration rights are determined by the photographers involved in the Project, not CCD.
- ENFORCEMENT OF AGREEMENT. In the event that enforcement of this Agreement becomes necessary, the prevailing party shall be entitled to recover from the other party, in addition to all other remedies available at law, an amount equal to all costs and expenses incurred in connection with such enforcement, including reasonable attorney fees at the trial level and in connection with all appellate proceedings. This Agreement and all instruments or documents related thereto shall be construed in accordance with the laws of the State of Florida without regard to the conflict of laws principles. In the event of any legal or equitable action arising under this Agreement, the parties agree that jurisdiction and venue of such action shall lie exclusively within the courts of Florida located in Orange County, Florida, and the parties specifically waive any other jurisdiction and venue.
- GENERAL PROVISIONS. The following provisions apply in the construction and interpretation of this Agreement: (i) this Agreement constitutes the entire agreement and understanding between the parties as to the subject matter hereof, and shall not be amended or modified in any manner except by an instrument in writing executed by the parties or their respective successors in interest; (ii) any number of counterparts of this Agreement may be signed and delivered, each of which shall be considered an original and all of which, together, shall constitute one and the same instrument; (iii) whenever possible, each part of this Agreement shall be interpreted in such a manner as to be valid under applicable law, and the invalidity or unenforceability of a particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted; (iv) the waiver by CCD of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement or of any future breach of the provision so waived; and (v) the terms and conditions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors, and permitted assigns.