Software License Agreement

End-User Software License Agreement for BrushTools Add-in

Copyright © 2012 - 2013 BrushTools. All Rights Reserved. Patent Pending.   www.brushtools-add-in.com

You should carefully read the following terms and conditions before purchasing and/or installing and/or using the computer software commonly known as "BrushTools" ("Software"). By purchasing and/or installing and/or using the Software you are agreeing to become bound by the terms and conditions of this End-User Software License Agreement (the "Agreement").

If you do not agree to the terms and conditions of this Agreement you are not permitted to purchase and/or install and/or use the Software.

This Agreement is a legal agreement between: (i) you (either an individual person or a single legal entity), who will be referred to in this Agreement as "Licensee"; and (ii) the manufacturer of the Software, The owner of the website www.brushtools-add-in.com, and/or its associated entities, who will be collectively referred to in this Agreement as "Licensor".


1. Definitions

For purposes of this Agreement the Website means www.brushtools-add-in.com


2. Grant of License

Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee:

(i) A non-exclusive, non-transferable license to use the Software, in machine-readable object code, solely for Licensee's internal business and private purposes provided, however, that no Software copy shall provide access to more than 1 (one) user.

(ii) The right to make as much as three (3) copies of the Software per such user to be used, each copy, on a different kind of computer (one computer, one laptop, and one terminal/workstation), or the minimum numbers of copies Licensor is required by law to permit Licensee to make, solely for archival or backup purposes.

Licensor shall provide to Licensee one copy of the Software, in machine-readable object code, solely for Licensee's use pursuant to this Agreement. Licensee shall not have the right to receive or use the source code of the Software.

(iii) The right to use the Software on one computer to be used by one user at a time.

(iv) The right to transfer the license among the employees of the Licensee provided that only one copy will exist in one time and the old copy will be deleted.


3. Covenants of Licensee

During the term of this Agreement:

Licensee shall: (i) adopt and enforce such internal policies, procedures and monitoring mechanisms as are necessary to ensure that the Software is used only in accordance with the terms of Section ‎2 hereof; and (ii) take all steps necessary to ensure that no person or entity will have unauthorized access to the Software.

Licensee shall not: (i) assign, sublicense, lease, encumber or otherwise transfer or attempt to transfer the Software or any portion thereof, other than in accordance with Section ‎14 hereof; (ii) permit any third party to use or have access to the Software, whether by timesharing, networking (except as expressly permitted hereunder) or any other means; (iii) modify, translate, reverse engineer, decompile or disassemble the Software, other than to the extent Licensor is required by law to permit Licensee to do so; (iv) possess or use the Software or any portion thereof, other than in machine readable object code; (v) make any copies of the Software, other than as permitted by Section ‎2 hereof; or (vi) remove any copyright, trademark, patent or other proprietary notices from the Software or any portion thereof.


4. Intellectual Property

Licensee acknowledges and agrees that Licensor or its licensors have and will retain all right, title, interest and ownership in and to the Software and any copies or updates of the Software.

Licensee acknowledges that the Software constitutes proprietary information and trade secrets of Licensor and its licensors, whether or not any portion thereof is or may be the subject of a valid copyright or patent. Licensee shall maintain all information and data contained in the Software or any portion thereof in strict confidence and shall not publish, communicate or disclose, or permit to be published, communicated or disclosed, to third parties such information and data without Licensor's prior written consent.

Licensee agrees to take all appropriate steps to ensure that persons having access to the Software shall refrain from any unauthorized reproduction or disclosure of the Software or any portion thereof.


5. License Fee

As consideration for the license granted to Licensee hereunder, Licensee shall pay to Licensor the license fee specified in the Website, or other license fee which will be agreed between the Licensor and the Licensee, and will be specified in a written notice sent by the Licensor to the Licensee.

The payment will be made according to the instructions provided in the Website, and the License will be valid upon completion of the payment.


6. Installation

(a) Except as otherwise agreed between the parties hereto, Licensee shall be solely responsible for installation of the Software. For Installation instructions – the Licensee must follow all instructions and restrictions provided in the Website or in the documentation delivered with the Software.

(b) Licensee acknowledge that when installing the Software the Licensee may be required to set the Macro Security Settings within Microsoft Excel to a lower level than the default setting. Following the installation of the Software the Licensee may reinstate any Macro Security Settings that the Licensee desire. Licensor will not accept, under any circumstances, any liability for any damage that may occur as a result of changing the Macro Security Settings within Microsoft Excel.


7. System Requirements and Support

(a) The license granted to Licensee is for Software that is suitable to Windows XP, Windows Server 2003, Windows Vista, Windows Server 2008 and Windows 7 (32-bit or 64-bit).

(b) The license granted to Licensee is for Software that is suitable to Microsoft Office Excel 2007 and Microsoft Office Excel 2010 (32-bit or 64-bit).

(c) During the first year after Licensee's receipt of the Software, Licensor shall provide to Licensee, at no charge to Licensee Software, support by e-mail or by a support form found on the Website, subject to the terms and conditions specified in the Website. For more info – please visit our Website.


8. Term and Termination

(a) The license granted to Licensee hereunder is perpetual and will continue unless terminated as provided herein. This Agreement shall immediately terminate: (i) upon Licensor's written notice to Licensee if Licensee breaches or violates any of its obligations under Sections ‎3, ‎4 or ‎5 of this Agreement; or (ii) automatically, without further notice to Licensee, if Licensee breaches or violates any term of this Agreement and fails to correct such breach or violation to the satisfaction of Licensor within seven (7) days after receiving notice of such breach or violation.

(b) Licensee shall, upon termination of this Agreement: (i) discontinue all use of the Software; (ii) permanently delete the Software and all copies of the Software contained in any computer memory or data storage apparatus under the control of Licensee; and (iii) certify to Licensor within one week after the termination of this Agreement that Licensee has delivered to Licensor and permanently deleted the Software and all copies of the Software in accordance with this Section ‎8‎(b).


9. Warranties


(a) Licensor does not warrant that the Software is fault tolerant or error free. Licensee expressly acknowledges that the Software and documentation are provided "as is" and shall have no claims regarding to different interpretations of the Software operation.

(b) Licensor warrants that the Software will perform substantially as specified in the user manuals (provided on the Website) and other documentation delivered with the Software; provided, however, that Licensor shall not be liable under this warranty if the Software has been modified or altered by anyone other than Licensor, if the Software has been abused or misapplied, or if Licensee has failed to incorporate all upgrades if such upgrades are available to Licensee by Licensor. In the event of a breach of this warranty, Licensee may return the defective Software to Licensor for either: (i) a refund of the licensee fee paid to Licensor by Licensee hereunder; or (ii) Licensor's replacement of the Software without charge. Refund or replacement of defective Software is Licensee's exclusive remedies for breach of this warranty.

(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION ‎9, LICENSOR DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE OR THE APPLICATION, OPERATION OR USE THEREOF, THE DATA GENERATED BY THE OPERATION OR USE THEREOF, OR ANY SUPPORT SERVICES RENDERED WITH RESPECT THERETO. LICENSOR HEREBY EXCLUDES ALL IMPLIED WARRANTIES TO THE EXTENT PERMITTED BY LAW, INCLUDING, SPECIFICALLY, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. LICENSOR HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, OR OF MERCHANTABLE QUALITY, OR OF FITNESS FOR ANY PURPOSE, PARTICULARLY, SPECIFIC OR OTHERWISE, OR OF NONINFRINGEMENT, CONCERNING THE SOFTWARE AND THE APPLICATION, OPERATION OR USE THEREOF.

(d) Licensor shall not provide any warranties or guarantees in relation to performance of Microsoft Excel, or any other Microsoft product. Licensor will have no liability in relation to any Microsoft Product. Licensee acknowledges that the Software operates under the system limitations of Microsoft Excel.


10. Limitation of Remedies

Licensee acknowledges and agrees that it has independently verified that the Software is appropriate for the purposes for which Licensee intends to use the Software, and that Licensee did not rely upon any skill or judgment of Licensor in such selection. Licensee assumes the entire risk related to the use of the Software. Licensor's liability in contract, tort or otherwise in connection with the Software or this Agreement shall not exceed the license fee paid to Licensor by Licensee for the Software.

REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, LICENSEE FURTHER AGREES THAT NEITHER LICENSOR NOR ITS LICENSORS SHALL BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR DAMAGES IN THE FORM OF CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL OR OTHERWISE, OR FOR EXEMPLARY DAMAGES, RESULTING FROM LICENSEE'S USE OR INABILITY TO USE THE SOFTWARE OR FROM ANY SUPPORT SERVICES RENDERED WITH RESPECT THERETO, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


11. Indemnification

(a) Licensor will indemnify Licensee from and against any liability to third parties arising from a claim that the Software infringes upon any third party's patent, copyright or trade secret rights in the event Licensee: (i) promptly gives Licensor written notice of the claim, (ii) gives Licensor full authority to defend such claim and provides Licensor with all information and assistance Licensor requests in connection with any defense of such claim, and (iii) gives Licensor sole control of the defense of such claim and all negotiations for the compromise or settlement thereof including, without limitation, the right to delegate its obligations or rights under this Section ‎11, in whole or in part, to its licensors; provided, however, that Licensor's agreement to indemnify Licensee shall be limited in amount to the license fee paid by Licensee to Licensor hereunder and shall be limited to the Software in the form and as delivered to Licensee. If a third party claim against Licensee results in a judicial order preventing Licensee from using the Software, Licensor, in its sole discretion, may: (i) procure from the third party the right to allow Licensee to continue to use the Software; (ii) modify or replace the Software or infringing-portings thereof to become noninfringing; or (iii) in the event that the foregoing options are not, in the sole judgment of Licensor, reasonably practical, terminate this Agreement immediately upon written notice to Licensee, and in the event of such termination by Licensor the license fee paid by Licensee will be promptly refunded by Licensor.

(b) Neither Licensor nor its licensors shall have any indemnification obligation to Licensee nor otherwise be liable to Licensee for any infringement based on: (i) Licensee's operation of an application developed using the Software; (ii) Licensee's combination of the Software with other products not furnished by Licensor; or (iii) Licensee's use of a superseded or altered version of the Software. Licensor will have no obligation for any costs incurred by Licensee without Licensor's prior written authorization.

(c) THE PROVISIONS OF THIS SECTION ‎11 STATES THE EXCLUSIVE LIABILITY OF LICENSOR, AND THE EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, OR TRADE SECRET INFRINGEMENT. LICENSEE SHALL MAKE NO CLAIM AGAINST LICENSOR'S LICENSORS ON ACCOUNT THEREOF.


12. Survival

Upon termination of this Agreement, all rights and obligations of the parties shall cease, except for the obligations of Licensee under Sections ‎4, ‎8‎(b) and this Section ‎12, which obligations shall survive the termination of this Agreement.


13. Remedies

The pursuit by Licensor of any remedy to which it is entitled at any time shall not be deemed an election of remedies or waiver of the right to pursue any of the other remedies to which it may be entitled.


14. Binding Effect: Assignment

This Agreement and all of the terms, provisions and conditions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Except as otherwise provided in this Section ‎14, Licensee may not assign this License or any of its rights or obligations hereunder, without the prior written consent of Licensor. Licensor will not withhold permission to transfer the Software as long as Licensee permanently transfers and ceases all use of the Software, and the proposed transferee agrees to be bound by the terms of this Agreement, and is in Licensor's opinion a responsible party. Any attempted assignment in violation of this Section ‎14 by Licensee of its rights or obligations under this Agreement, whether by operation of law or otherwise, shall have no force and effect.


15. Entire Agreement

This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof.


16. Amendment; Waiver

No modification, variation or amendment of this Agreement shall be effective without the written consent of both parties hereto. A failure of either party to this Agreement to enforce at any time any of the provisions of this Agreement, or to require at any time performance of any of the provisions hereof, shall in no way affect the full right to require such performance at any time thereafter. No waiver shall be deemed a waiver of any other breach of the same or any other term or condition hereof.


17. Notices

All notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given to a party if delivered personally or mailed by e-mail or submitted via fill out form found on the website.


18. Invalid, Illegal or Unenforceable Provisions

In the event that any one or more provisions of this Agreement shall for any reason be held by any tribunal of competent jurisdiction to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and each invalid, illegal or unenforceable provision shall be treated by the tribunal as modified to the least extent necessary to rectify its invalidity, illegality or unenforceability and shall be enforced as so modified. This Agreement shall be governed by, and construed in accordance with, the internal laws of a State that will be selected by the Licensor.


19. Independent Contractors

Nothing in this Agreement shall be deemed or construed by the parties or any other entity to create an agency, partnership or joint venture between Licensor and Licensee.