The following constitutes the terms and conditions of an Agreement by and
between TIMINGS, LLC. a Florida corporation having an address of P.O. Box 9018
Longboat Key, Florida 34228 [hereafter sometimes “Licensor” or “TIMINGS” and
the “User”, which term where appropriate may mean “Licensee” as well.
Notices
Notice
to user::
please read this agreement carefully. By copying, installing or using all or
any portion of the software you accept allthe terms and conditions of this
agreement without exception.
You agree that this agreement is like any written negotiated agreement signed by
you. This agreement is enforceable against you and any legal entity that
obtained the software and on whose behalf it is used: for example, if
applicable, your employer. If you do not agree to the terms of this agreement,
do not install, copy or use the software in any respect.
Timings, llc by assignment owns all intellectual property in the software. The
software is licensed, not sold. You are permitted to copy, download, install,
use, or otherwise benefit from the functionality or intellectual property of
the softwate only in accodance with the terms of this agreement. As set forth
hereafter, you may not transfer the software to any person or entity.
The software may include product activation and other technology designed to
prevent unauthorized copying. The activation technology may prevent your use of
the software if you do not follow the activation process.
i.
Definitions.
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Copyright Owner. The term Copyright Owner shall mean “TIMINGS, LLC.,” P.O. BOX
9018, Longboat Key, FL 34228 USA, A Florida corporation, by assignment from
Anne Bryant the creator of the Intellectual Property and Software which is the
subject of this Agreement.
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"Computer" means a computer device that accepts information in digital or
similar form and manipulates it for a specific result based on a sequence of
instructions.
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"Internal Network" means a private, proprietary network resource accessible
only by employees and individual contractors (i.e., temporary employees) of a
specific corporation or similar business entity. Internal Network does not
include the Internet or any other network community open to the public,
including but not limited to membership or subscription driven groups,
associations and similar organizations.
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"Permitted Number" means one (1) unless otherwise indicated under a valid
license (e.g., volume license) granted by TIMINGS, LLC.
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"Software" means (a) all of the information with which this agreement is
provided, including but not limited to, web and internet programs utilized by
Licensor in connection with the MasterClick and VideoClick software program or
desktop software programs and(i) related explanatory written materials and
files ("Documentation"); and (b) any modified versions and copies of, and
upgrades, updates and additions to, such information, provided to you by Anne
Bryant or TIMINGS, LLC. at any time, to the extent not provided under a
separate agreement (collectively, "Updates"). The term “Software” also
includes, but is not limited to, its object code, scripted code, and all Third
Party Components, and the user manuals and all accompanying materials,
including any and all Revisions and Versions regardless of name.
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The term “Intellectual Property” means the Software, any and all trade and
service marks used in or about the Software by the Licensor and Creator and
includes but is not limited to the terms “MasterClick”; VideoClick” used alone
or in combination with other terms and phrases including “Do The Math”.
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The term “Creator” means Anne Bryant.
ii. Software license..
As long as you obtained the Software from the Creator Anne Bryant or TIMINGS,
LLC. through their authorized website:
“http://www.MasterclickTempoTimingSoftware.com,” and as long as you comply with
the terms of this agreement, TIMINGS, LLC. grants you a non-exclusive license
to use the Software in the manner and for the purposes described in the
Documentation, as further set forth below.
iii. Grant of license.
Licensor grants Licensee, pursuant to the terms and conditions of this
Agreement, a perpetual, worldwide, non-exclusive, non-transferable, license to
install and use the Software solely for Licensee's own internal business use
You may install and use one copy of the Software on your compatible Computer.
iv. Server use.
You may install one copy of the Software on one Computer file server within
your Internal Network for the purpose of using the Software through commands,
data or instructions (e.g., scripts) from another Computer within the same
Internal Network, provided that the total number of users (not the concurrent
number of users) that are permitted to use the Software on such Computer file
server does not exceed the Permitted Number [single user].
v. Network use.No
network use is permitted, from or to a Computer not part of your Internal
Network, for Internet or web hosting services or by any user not licensed to
use this copy of the Software under a valid license from Anne Bryant or
TIMINGS, LLC.
vi. Backup copy.
You may make backup copies of the Software, provided your backup copies are not
installed or used for other than archival purposes.
vii. Intellectual
property and ownership. The Software and any authorized
copies that you make are the intellectual property of and are owned by TIMINGS,
LLC. by assignment from Anne Bryant. The structure, organization and code of
the Software are the valuable trade secrets and confidential information of
TIMINGS, LLC. The Software is protected by law, including but not limited to
the copyright laws of the United States and other countries, and by
international treaty provisions. Except as expressly stated herein, this
agreement does not grant you any intellectual property rights in the Software
or Intellectual Property and all rights not expressly granted are reserved by
TIMINGS, LLC.
viii. Confidential
information
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The term “Confidential Information” shall include the Software as above
described and approved derivative versions or other versions such as “LE”
editions or any other versions and any discussions with the Creator Anne Bryant
or TIMINGS, LLC regarding the Software.
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Nondisclosure and Nonuse of Confidential Information. Recipient agrees to use
reasonable care, but in no event no less than the same degree of care that it
uses to protect its own confidential and proprietary information of similar
importance, to prevent the unauthorized use, disclosure, publication or
dissemination of Confidential Information. Recipient agrees to accept
Discloser's Confidential Information for the sole purpose of meeting its
obligations under the terms of this Agreement. Recipient agrees not to use
Confidential Information otherwise for its own or any third party's benefit
without the prior written approval of an authorized representative of Discloser
in each instance. Recipient may disclose Confidential Information if required
by any judicial or governmental request, requirement or order; provided that
Recipient will take reasonable steps to give Discloser sufficient prior notice
in order to contest such request, requirement or order by notifying Discloser
of such request.
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Ownership of Confidential Information. All Confidential Information, and any
Derivatives thereof, remains the property of Discloser and no license or other
rights to Confidential Information is granted or implied hereby. For
purposes of this Agreement, "Derivatives" shall mean: (i) for copyrightable or
copyrighted material, any translation, abridgment, revision or other form in
which an existing work may be recast, transformed or adapted; (ii) for
patentable or patented material, any improvement thereon; and (iii) for
material which is protected by trade secret, any new material derived from such
existing trade secret material, including new material which may be protected
by
copyright, patent and/or trade secret.
ix. Restrictions
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Notices. You may not copy the Software except as set forth in this Agreement.
Any permitted copy of the Software that you make must contain the same
copyright and other proprietary notices that appear on or in the Software.
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No Modifications. You may not modify, adapt or translate the Software. You may
not reverse engineer, decompile, disassemble or otherwise attempt to discover
the source code of the Software except to the extent you may be expressly
permitted under applicable law to decompile only in order to achieve
interoperability with the Software.
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You may not repackage the Software for distribution, transfer or resale.
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No Transfer. WITHOUT THE PRIOR WRITTEN CONSENT OF TIMINGS, LLC YOU MAY NOT
RENT, LEASE, SELL, SUBLICENSE, ASSIGN OR TRANSFER THE SOFTWARE, OR AUTHORIZE
ANY PORTION OFTHE SOFTWARE TO BE COPIED ONTO ANOTHER INDIVIDUAL OR LEGAL
ENTITY'S COMPUTER EXCEPT AS MAY BE PERMITTED HEREIN. THE FOREGOIN SHALL INCLUDE
PRE-RELEASE, EDUCATION, NOT FOR SALE OR NOT FOR RESALE COPIES OF THE SOFTWARE.
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Prior to any transfer Anne Bryant and TIMINGS, LLC. may require that you and
the receiving party confirm in writing your compliance with this Agreement,
provide Anne Bryant or TIMINGS, LLC. with information about yourselves, and
register as end-users of the Software. Allow 2-4 weeks to transfer. Please
visit http://www.MasterclickTempoTimingSoftware.com
for more information, or contact customer support directly at
info@MasterclickTempoTimingSoftware.com
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Updates. If the Software is an upgrade or update to a previous version of the
Software, you must possess a valid license to such previous version in order to
use such upgrade or update. All upgrades and updates are provided to you on a
license exchange basis. You agree that by using an upgrade or update you
voluntarily terminate your right to use any previous version of the Software..
Upgrades and updates may be licensed to you by TIMINGS, LLC. with additional or
different terms.
x.
Limited warranty.
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TIMINGS, LLC. warrants to the individual or entity that first purchases a
license for the Software for use on Computers pursuant to the terms of this
agreement that the Software will perform substantially in accordance with the
Documentation for the ninety (90) day period following receipt of the Software
when used on the recommended operating system and hardware configuration.
THIS LIMITED WARRANTY DOES NOT APPLY TO PRE-RELEASE (BETA), TRYOUT, STARTER,
EVALUATION, PRODUCT SAMPLER, OR NOT FOR RESALE (NFR) COPIES OF SOFTWARE or NOT
FOR SALE [NFS], OR WEBSITES, ONLINE SERVICES OR CD SERVICES (See Section P).
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All warranty claims must be made, along with proof of purchase, within such
ninety (90) day period. If the Software does not perform substantially in
accordance with the Documentation, the entire liability of TIMINGS, LLC. and
your exclusive remedy will be limited to either, at TIMINGS, LLC.’s option,
replacement of the Software or refund of the license fee you paid for the
Software. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC
LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO
JURISDICTION.
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To make a warranty claim, during the limited warranty period you must contact
info@MasterclickTempoTimingSoftware.com via email If the functionalities of the
Software vary substantially from the agreed upon functionalities. TIMINGS,
LLC.’s are entitled -- by way of re-performance and at its own discretion -- to
repair or replace the Software. If this fails, you are entitled to a reduction
of the purchase price (reduction) or to cancel the purchase agreement
(rescission). For further information, contact the Customer Support Department
at info@MasterclickTempoTimingSoftware.com.
xi. Disclaimer.The foregoing limited warranty is the only
warranty made by timings, llc. And states the sole and exclusive remedies of
timings, llc.’s breach of warranty. Except for the foregoing limited warranty
and any warranty, condition, representation or term to the extent the same
cannot or may not be excluded or limited by law applicable to you in your
jurisdiction timings, llc. Provide the software and access to any websites,
online services and cd services as is and with all faults and expressly
disclaim all other warranties, conditions, representations or terms, express or
implied, whether by statute, common law, custom, usage or otherwise as to any
matter, including but not limited to performance, security, non-infringement of
third party rights, integration, merchantability, quiet enjoyment, satisfactory
quality or fitness for any particular purpose.
xii.
Limitation of liability.Except for the exclusive remedy set
forth above timings, llc. Shall not be liable to you for any loss, damages,
claims or costs whatsoever including any consequential, indirect or incidental
damages, any lost profits or lost savings, any damages resulting from business
interruption, personal injury or failure to meet any duty of care, or claims by
a third party, even if a representative of timings, llc. Has been advised of
the possibility of such loss, damages, claims or costs. The foregoing
limitations and exclusions apply to the extent permitted by applicable law in
your jurisdiction. The aggregate liability timings, llc. And that of its
affiliates and suppliers under or in connection with this agreement will be
limited to the amount paid for the software, if any. This limitation will apply
even in the event of a fundamental or material breach or a breach of the
fundamental or material terms of this agreement.
xiii.
Export rules. MasterClick? Software is available to be sold
by downloading and/or DVD installation. You agree that the Software will not be
repackaged to 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 laws, restrictions or regulations (collectively the "Export
Laws"). All rights to use the Software are granted on condition that such
rights are forfeited if you fail to comply with the terms of this agreement.
xiv.
Governing law. This agreement will be governed by and
construed in accordance with the substantive laws in force in the State of
FLORIDA.
xv.
Choice of forum.. In the event that litigation is brought on
any issue arising from this Agreement, the parties hereby submit to the
exclusive jurisdiction of, and waive any venue objections against, the United
States District Court for the Southern District of Florida and the Supreme
Court of the State of Florida-Sarasota County in any litigation arising out of
the Agreement and agree that service of any process in any such action may be
made personally or by registered mail or by overnight delivery service which
produces a receipt such as Federal Express or UPS.
xvi.
General provisions. If any part of this agreement is found
void and unenforceable, it will not affect the validity of the balance of this
agreement, which will remain valid and enforceable according to its terms. This
agreement may only be modified by a writing signed by an authorized officer of
TIMINGS, LLC. The English version of this agreement will be the version used
when interpreting or construing this agreement. This is the entire agreement
between TIMINGS, LLC. and you relating to the Software and it supersedes any
prior representations, discussions, undertakings, communications or advertising
relating to the Software.
xvii.
Compliance with licenses.. If you are a business, company or
organization, you agree that upon request from TIMINGS, LLC. That you will
within thirty (30) days fully document and certify that use of MasterClick
software at the time of the request is in conformity with your valid licenses
from TIMINGS, LLC.
xviii.
Reduction of damages. You are required to take all
reasonable measures to avoid and reduce damages, in particular to make back-up
copies of the Software and your computer data subject to the provisions of this
agreement.
xix.
Pre-release software additional terms. If the Software is
pre-commercial release or beta software ("Pre-release Software"), then this
Section applies. The Pre-release Software is a pre-release version, does not
represent final product from TIMINGS, LLC., and may contain bugs, errors and
other problems that could cause system or other failures and data loss.
xx.
Time out software.. If the Software is a timeout version
then it will cease operations after a designated period of time or number of
launches following installation. The license hereunder will terminate after
such period or number of launches unless extended by TIMINGS, LLC. upon your
acquisition of a full retail license. ACCESS TO ANY FILES OR OUTPUT CREATED
WITH SUCH SOFTWARE OR ANY PRODUCT ASSOCIATED WITH SUCH SOFTWARE IS ENTIRELY AT
YOUR OWN RISK.
xxi.
Educational software product. If the Software accompanying
this agreement is Educational Software Product (Software manufactured and
distributed for use by only Educational End Users), you are not entitled to use
the Software unless you qualify in your jurisdiction as an Educational End
User.
xxii.
Access to software of third-parties. The Software may rely
upon or facilitate your access to websites maintained by TIMINGS, LLC. or its
affiliates or third parties offering goods, information, software and services
("Online Services"). Your access to and use of any website is governed by the
terms, conditions, disclaimers and notices found on such site, for example, the
Terms of Use.
xxiii.
No endorsements. TIMINGS, LLC. does not control, endorse or
accept responsibility for websites or Online Services offered by third parties.
Any dealings between you and any third party in connection with a website or
Online Services, including delivery of and payment for goods and services and
any other terms, conditions, warranties or representations associated with such
dealings, are solely between you and such third party.
xxiv.
At your own risk. EXCEPT AS EXPRESSLY AGREED BY TIMINGS,
LLC. OR ITS AFFILIATES OR A THIRD PARTY IN A SEPARATE AGREEMENT, YOUR USE OF
WEBSITES AND ONLINE SERVICES IS AT YOUR OWN RISK.
xxv. Injunctive relief. The wrongful
copying, disclosure, or use of the Software in a manner inconsistent with any
provision of this Agreement may cause irreparable injury to Licensor for which
they may not have an adequate remedy at law. And would be entitled to equitable
relief in court, including but not limited to temporary restraining orders,
preliminary injunctions and permanent injunctions.
xxvi.
Attorneys.. In any action to enforce this Agreement, the
prevailing party shall be awarded all court costs and reasonable attorneys'
fees incurred, including such costs and attorneys' fees incurred in enforcing
and
collecting any judgment.
xxvii.
Notices. Any notices herein shall be in writing and sent to
the following by e-mail or snail mail unless otherwise indicated in a further
written notice: