MyPlateTM
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE CONTINUING. IF YOU DO NOT AGREE TO ACCEPT THE TERMS OF THIS AGREEMENT, YOU MUST EXIT WITHOUT DOWNLOADING OR INSTALLING THE SOFTWARE.
THIS AGREEMENT PERMITS YOU TO (i) use a free, limited-use copy of MyPlate (the "Free Trial Version") for your own personal purposes, not as part of a business or for other commercial enterprise; (ii) evaluate MyPlate for a limited time during the trial period for both personal and commercial purposes.
If you are interested in licensing MyPlate for any other purpose, you must purchase the Full Version.
THE SOFTWARE AND ITS ACCOMPANYING DOCUMENTATION ARE PROTECTED BY UNITED STATES AND INTERNATIONAL COPYRIGHT LAW, TRADEMARK LAW AND INTERNATIONAL TREATY AND ARE THE SUBJECT MATTER OF PATENTS AND PENDING PATENTS. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION OF THE SOFTWARE AND RELATED DOCUMENTATION MAY RESULT IN CIVIL AND/OR CRIMINAL PENALTIES.
INTRODUCTION. This Agreement is between ITS Business Management Group ("ITS BMG"), and you ("you") (including the company or enterprise you represent or which employs you), the user of MyPlate Free or Full Version and the accompanying documentation (collectively "MyPlate") only as authorized hereunder.
Based on the foregoing and other good and valuable consideration, you agree:
1. LICENSE GRANT. Subject to the restrictions below, ITS BMG grants you a personal, non-exclusive, non-transferable, royalty-free, revocable license ("License") to use MyPlate. This License permits you to make up to three object code copies of MyPlate during the term of this Agreement, installed on up to three personal computers and archival digital storage devices, but for use only by you, and only on a single personal computer concurrently. You must reproduce on all copies of MyPlate the copyright, trademark and patent notices and other proprietary legends that appear on the original copy of MyPlate. This Agreement does not include any rights to receive maintenance in connection with MyPlate or updates of the software.
2. EVALUATION LICENSE. If you have not paid for and activated the Full Version, your copy is intended for your personal use only and may not be used in a commercial environment except for evaluation purposes during the trial period. Until you pay for and activate the Full Version, the features of the software will be limited. Users of the Free Version are entitled to no services whatsoever, including without limitation technical advice or support.
3. REGISTRATION. To pay for and activate the Full Version, select the "Full Version" command on Download page on our website. Once you have paid, you will receive a unique serial number enabling you and only you to have access to technical support and future product upgrades. The serial number you receive is a valuable trade secret belonging to ITS BMG. You agree not to disclose that serial number to any other person under any circumstance.
4. NO IMPLIED LICENSE. You acknowledge that this License in no way shall be construed to provide an express or implied license to use, modify or improve any of ITS BMG's copyrights, trademarks, trade secrets and/or patents.
5. RESTRICTIONS. MyPlate contains proprietary information, which is protected by a combination of copyright, trademark, patent, trade secret and/or other proprietary rights, and constitutes valuable property of ITS BMG. You acknowledge that MyPlate is disclosed to you only for purposes consistent with the terms and conditions of this License and that you do not acquire any rights of ownership or title in MyPlate. You may not (i) translate, modify, disassemble, decompile or reverse-engineer MyPlate; (ii) rent, lease, loan, sell, sublicense, grant a security interest in, distribute or otherwise transfer MyPlate to any third party; (iii) make any copy of MyPlate except for up to three copies for your personal use only; (iv) create derivative works of MyPlate, except in accordance with this Agreement; (v) attempt to or help others to circumvent the License; (vi) remove any logo, copyright, patent, trademark or other proprietary notice or label from MyPlate, information exported by MyPlate, or any accompanying documentation or materials.
6. OWNERSHIP. ITS BMG owns all right, title and interest in and to all Intellectual Property Rights subsisting in MyPlate and all portions thereof. For purposes of this Agreement, "Intellectual Property Rights" means any and all rights affecting intellectual or industrial property existing now or in the future in the United States or anywhere in the universe. Intellectual Property Rights include, without limitation, any and all rights (i) under the laws of copyright, patent, trade secret, trademark, trade dress, unfair competition, "droit moral" or moral rights, or other similar laws; (ii) of publicity or privacy; (iii) relating to the development and use of databases, or know-how; and (iv) subsisting in any and all applications, registrations, renewals, extensions, restorations, continuations, divisionals, or foreign counterparts of any of the foregoing. ITS BMG and MyPlate are trademarks or registered trademarks of ITS BMG. Unauthorized copying of MyPlate will cause ITS BMG great and irreparable harm. ITS BMG is entitled to receive immediate equitable relief from any court of competent jurisdiction to prevent or stop your threatened or actual infringement of any of those rights.
7. MAINTENANCE SERVICES. You will receive technical support via electronic mail for the first 60 days following your download of MyPlate. Thereafter, you may continue to receive technical support via electronic mail and minor upgrades to MyPlate (collectively, "Maintenance Services") as part of a paid annual maintenance agreement.
8. DISCLAIMER OF WARRANTIES. All products and services relating to this Agreement ("Services") including, without limitation, MyPlate, ITS BMG's Web site, and Maintenance Services are provided "AS IS," without warranty of any kind. ITS BMG EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING MYPLATE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, OR ANY WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD PARTY'S PATENT(S), TRADE SECRET(S), COPYRIGHT(S) OR OTHER INTELLECTUAL PROPERTY RIGHTS. ITS BMG DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES. ITS BMG DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN MYPLATE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF MYPLATE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN MYPLATE WILL BE CORRECTED. FURTHERMORE, ITS BMG DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF MYPLATE IN TERMS OF IT'S CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ITS BMG OR ITS BMG'S AUTHORIZED REPRESENTATIVE SHALL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD MYPLATE PROVE DEFECTIVE, YOU (AND NOT ITS BMG OR ITS BMG'S AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
9. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL ITS BMG BE LIABLE FOR ANY LOST REVENUE OR PROFITS OR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE MYPLATE OR ANY SERVICES RELATING TO THIS AGREEMENT REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES AND EVEN IF ITS BMG OR ITS BMG'S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL ITS BMG'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT ITS BMG RECEIVED FROM YOU FOR USE OF MYPLATE.
10. TERMINATION. This Agreement will commence upon installation of MyPlate. Your rights under Section 1 and/or 2 will immediately and automatically terminate upon your breach of any provision of this Agreement, at which time you must return to ITS BMG or destroy all copies of MyPlate in your possession.
11. GOVERNMENT LICENSEE. If MyPlate is licensed by or for any unit or agency of the United States Government, then MyPlate will be classified as "commercial computer software", as that term is defined in the applicable provisions of the Federal Acquisition Regulation (the "FAR") and supplements, including the Department of Defense ("DoD") FAR Supplement (the "DFARS"). MyPlate was developed exclusively at private expense, and no part of MyPlate was first produced in the performance of a United States Government contract. If MyPlate is supplied for use by DoD, MyPlate is delivered subject to the terms of this Agreement and either (i) in accordance with DFARS 227.7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS 252.227-7013(c) (Nov. 1995), as applicable. If MyPlate is supplied for use by a Federal agency other than DoD, MyPlate is restricted computer software delivered subject to the terms of this Agreement and (i) FAR 12.212; (ii) FAR 52.227-19; or (iii) FAR 52.227-14, as applicable.
12. GOVERNING LAW. This Agreement and any claim or cause of action arising under or related to this Agreement in any way shall be governed by and construed in accordance with the laws of the State of Washington, excluding its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. In connection with any claim or cause of action that arises under or is related to this Agreement in any way, you hereby consent to the personal and exclusive jurisdiction and venue of the state and federal courts and/or arbitral fora located in King County of the State of Washington.
13. SEVERABILITY. To the extent that any of the provisions of this Agreement, or any word, phrase, clause, or sentence thereof, is found to be illegal or unenforceable for any reason, that provision, word, phrase, clause, or sentence will be reformed or deleted only to the extent necessary to make this Agreement as reformed legally enforceable. That reformation or deletion will not affect the balance of the provisions or parts of this Agreement, which are to be construed as severable and independent.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes any and all written or oral agreements previously existing between the parties with respect to such subject matter. No delay on the part of ITS BMG in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any waiver on the part of ITS BMG of any right preclude any other or further exercise of any right under this Agreement.
BY CLICKING "I accept the agreement" or "Agree" BELOW, YOU ACKNOWLEDGE THAT YOU (I) HAVE READ THIS AGREEMENT, UNDERSTAND IT, (II) HAVE ALL RIGHT POWER AND AUTHORITY TO BIND YOURSELF, INCLUDING YOUR COMPANY OR ENTERPRISE TO IT, AND (III) AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.