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Business Continuity Planning Software Agreement

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User License:	Bergee Business Continuity Planning LLC Binary Code License Agreement - Bergee Business Continuity Planning LLC ABC123 Business Continuity Plan and Pandemic Planning Software, 2006 Edition. BERGEE BUSINESS CONTINUITY PLANNING LLC (“Bergee”) IS WILLING TO LICENSE THE SOFTWARE IDENTIFIED BELOW TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS BINARY CODE LICENSE AGREEMENT AND SUPPLEMENTAL LICENSE TERMS (COLLECTIVELY AGREEMENT). PLEASE READ THE AGREEMENT CAREFULLY. BY DOWNLOADING OR INSTALLING THIS SOFTWARE, YOU ACCEPT THE TERMS OF THE AGREEMENT. INDICATE ACCEPTANCE BY SELECTING THE ACCEPT BUTTON AT THE BOTTOM OF THE AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY ALL THE TERMS, SELECT THE DECLINE BUTTON AT THE BOTTOM OF THE AGREEMENT AND PENDING ORDER FOR THE SOFTWARE WILL BE CONCELLED. 1. DEFINITIONS. Software means the identified above in binary form, any other machine readable materials (including, but not limited to, libraries, source files, header files, and data files), any updates or error corrections provided by Bergee, and any user manuals, programming guides and other documentation provided to you by Bergee under this Agreement. Programs mean any or all ABC123 Business Continuity Plan and Pandemic Planning Software applications intended to run on general purpose desktop or laptop computers and servers. 2. LICENSE TO USE. Subject to the terms and conditions of this Agreement, Bergee grants you a non-exclusive, non-transferable, limited license without license fees to reproduce and use internally Software complete and unmodified for the sole purpose of running Business Continuity Plan and Pandemic Planning Programs. 3. RESTRICTIONS. Software is confidential and copyrighted. Title to Software and all associated intellectual property rights is retained by Bergee andor its licensors. Unless enforcement is prohibited by applicable law, you may not modify, decompile, or reverse engineer Software. You acknowledge that Licensed Software is designed and intended for use in developing and maintaining business continuity and pandemic plans. Bergee Business Continuity Planning LLC disclaims any express or implied warranty of fitness for any other use. No right, title or interest in or to any trademark, service mark, logo or trade name of Bergee or its licensors is granted under this Agreement. 4. LIMITED WARRANTY. Bergee warrants to you that for a period of ninety (90) days from the date of purchase, as evidenced by a copy of the receipt, the media on which Software is furnished (if any) will be free of defects in materials and workmanship under normal use. Except for the foregoing, Software is provided AS IS. Your exclusive remedy and Bergee's entire liability under this limited warranty will be at Bergee's option to replace Software media or refund the fee paid for Software. Any implied warranties on the Software are limited to 90 days. Some states do not allow limitations on duration of an implied warranty, so the above may not apply to you. This limited warranty gives you specific legal rights. You may have others, which vary from state to state. 5. DISCLAIMER OF WARRANTY. UNLESS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. 6. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL BERGEE OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF BERGEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will Bergee's liability to you, whether in contract, tort (including negligence), or otherwise, exceed the amount paid by you for Software under this Agreement. The foregoing limitations will apply even if the above stated warranty fails of its essential purpose. Some states do not allow the exclusion of incidental or consequential damages, so some of the terms above may not be applicable to you. 7. TERMINATION. This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying all copies of the Software. This Agreement will terminate immediately without notice from Bergee if you fail to comply with any provision of this Agreement. Either party may terminate this Agreement immediately should any Software become, or in either party's opinion be likely to become, the subject of a claim of infringement of any intellectual property right. Upon Termination, you must destroy all copies of Software. 8. EXPORT REGULATIONS. All Software and technical data delivered under this Agreement are subject to US export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to you. 9. TRADEMARKS AND LOGOS. You acknowledge and agree as between you and Bergee that Bergee owns the BERGEE and ABC123 Business Continuity Plan and Pandmic Planning Software related trademarks, service marks, logos and other brand designations (Bergee Marks), and you agree to comply with the Bergee Trademark and Logo Usage Requirements. Any use you make of the Bergee Marks inures to Bergee's benefit. 10. U.S. GOVERNMENT RESTRICTED RIGHTS. If Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government's rights in Software and accompanying documentation will be only as set forth in this Agreement; this is in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions). 11. GOVERNING LAW. Any action related to this Agreement will be governed by Wisconsin law and controlling U.S. federal law. No choice of law rules of any jurisdiction will apply. 12. SEVERABILITY. If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate. 13. INTEGRATION. This Agreement is the entire agreement between you and Bergee relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party. For inquiries please contact Bergee Business Continuity Planning LLC, 833 N. High Point Road, Madison, Wisconsin 53717, U.S.A. (Form ID#01101)
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