LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CHECKING THE ACCEPT BOX ON THE ORDER FORM LICENSEE (A) ACCEPTS THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT LICENSEE IS
18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND LICENSEE MUST NOT USE THE SOFTWARE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
“License Fees” means the license fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Order Form” means the order form filled out and submitted by or on behalf of Licensee, and accepted by Licensor, for Licensee’s purchase of the license for the Software granted under this Agreement.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Software” means the Look Cook and Eat website and software program for which Licensee is purchasing a license.
2. License Grant and Scope. Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to access and use the Software subject to all conditions and limitations set forth in Section 3 or elsewhere in this Agreement.
3. Use Restrictions. Licensee shall not, directly or indirectly: (a) provide any other Person with access to or use of the Software; (b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or any part thereof; (c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (d)remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software o, including any copy thereof; (e) copy the Software in whole or in part; (f) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any third party for any reason; (g) use the Software in violation of any law, regulation or rule; or (h) use the Software o for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Licensor’s commercial disadvantage; or (i) use the Software in any manner which could damage, disable, overburden, or impair the Software or interfere with any other party’s use and enjoyment of the Software.
4. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software through access thereto provided by Licensee, directly or indirectly.
5. Account To access the Software, Licensee must provide registration details. It is a condition of use of the Software that all the details provided be correct, current, and complete. If Main Dish Media believes the details are not correct, current, or complete, Main Dish Media has the right to refuse access to the Software and to terminate or suspend Licensee’s account.
Licensee is responsible for maintaining the confidentiality of its account and password and for restricting access to Licensee’s computer, and Licensee agrees to accept responsibility for all activities that occur under its account or password. Licensee acknowledges that Main Dish Media is not responsible for third party access to Licensee’s account that results from theft or misappropriation of Licensee’s account. Main Dish Media and its associates reserve the right to refuse or cancel service, terminate accounts, or remove or edit content in its sole discretion.
6. Use of Communication Services. The Software may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable Licensee to communicate with the public at large or with a group (collectively, “Communication Services”), Licensee agrees to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service.
By way of example, and not as a limitation, Licensee agrees that when using a Communication Service, Licensee will not: defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless Licensee owns or controls the rights thereto or have received all necessary consents; upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer; advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages; conduct or forward surveys, contests, pyramid schemes or chain letters; download any file posted by another user of a Communication Service that Licensee knows, or reasonably should know, cannot be legally distributed in such manner; falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded, restrict or inhibit any other user from using and enjoying the Communication Services; violate any code of conduct or other guidelines which may be applicable for any particular Communication Service; harvest or otherwise collect information about others, including e-mail addresses, without their consent; violate any applicable laws or regulations.
Main Dish Media has no obligation to monitor the Communication Services. However, Main Dish Media reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. Main Dish Media reserves the right to terminate Licensee’s access to any or all of the Communication Services at any time without notice for any reason whatsoever.
Main Dish Media reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Main Dish Media’s sole discretion.
Always use caution when giving out any personally identifying information in any Communication Service. Main Dish Media does not control or endorse the content, messages or information found in any Communication Service and, therefore, Main Dish Media specifically disclaims any liability with regard to the Communication Services and any actions resulting from Licensee’s participation in any Communication Service. Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. Licensee is responsible for adhering to such limitations if Licensee uploads the materials.
8. Intellectual Property Rights. Licensee acknowledges and agrees that the Software is provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software under this Agreement, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Licensor reserves and shall retain the entire right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement.
9. Payment. All License Fees are payable in the manner set forth in the Order Form and are non-refundable. Licensee shall pay all fees specified in any subscription to the Software. There will be no refunds or credits for partial periods of service or for periods in which Licensee’s account remains open but Licensee does not use the Software. Main Dish Media reserves the right to modify its billing rates at any time upon thirty (30) days written notice.
10. Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in effect for one year or until terminated as set forth herein (the “Term”).
(b) Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement.
(c) Licensee may terminate this Agreement, effective upon written notice to Licensor, such written notice to be effected by sending an email to [email protected]
(d) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
11. Disclaimer of Warranties. THE SOFTWARE IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE.
(c)THE LIMITATIONS SET FORTH IN SECTION 12(a) AND 12(b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
13. Export Regulation. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Sottware available outside the US.
14. Not Medical Advice.
THIS SOFTWARE MAY OFFER GENERAL HEALTH-RELATED INFORMATION FOR EDUCATIONAL PURPOSES ONLY. THE INFORMATION FURNISHED ON THIS SOFTWARE IS NOT INTENDED TO BE PROFESSIONAL ADVICE AND IS NOT INTENDED TO REPLACE CONSULTATION WITH A QUALIFIED PHYSICIAN, PHARMACIST, OR OTHER HEALTH CARE PROFESSIONAL. LICENSEE’S RELIANCE UPON INFORMATION AND CONTENT OBTAINED AT OR THROUGH THIS SOFTWARE IS SOLELY AT ITS OWN RISK. NEITHER ITS CONTENT PROVIDERS NOR MAIN DISH MEDIA ASSUME ANY LIABILITY OR RESPONSIBILITY FOR DAMAGE OR INJURY (INCLUDING DEATH) TO LICENSEE, OTHER PERSONS OR PROPERTY ARISING FROM ANY USE OF ANY PRODUCT, INFORMATION, IDEA OR INSTRUCTION CONTAINED IN THE CONTENT OR SERVICES PROVIDED TO LICENSEE.
(a) To the maximum extent permitted by law, this agreement is governed by the laws of the State of Iowa and Licensee hereby consent to the exclusive jurisdiction and venue of courts in Iowa in all disputes arising out of or relating to the use of the Software. Use of the Software is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section. In any claim or action directly or indirectly arising under this agreement or related to the Software, each party irrevocably submits to the personal jurisdiction of the Iowa State District Court sitting in Polk County, Iowa or of the United States Court for the Southern District of Iowa. Each party waives any jurisdictional, venue or inconvenient forum objections to these courts. Licensee agrees that it shall pursue any claim against Main Dish Media in its individual capacity only, and will not participate in any collective or so-called “class” action against Main Dish Media.
(b) Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond Licensor’s reasonable control.
(e) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. Any purported assignment, delegation or transfer in violation of this section is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(f) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(g) This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(h) If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(i)For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole.
(j)The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.