Kinesphere (TM) Software License Agreement and Limited Warranty


IMPORTANT: BY OPENING THIS PACKAGE OR BY USING THE SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THEREFORE, YOU SHOULD CAREFULLY READ THE FOLLOWING AGREEMENT BEFORE UNSEALING AND/OR INSTALLING ANY OF THE SOFTWARE PACKAGES AND IF A REGISTRATION CARD IS ENCLOSED, THEN SIGN AND RETURN IT. ONLY IF YOU COMPLY WITH THESE TERMS, KINESPHERE OFFERS YOU SUPPORT AND SERVICE, PRODUCT UPDATES AND THE LIMITED WARRANTY.

IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT INSTALL THE SOFTWARE, AND RETURN THE ENTIRE PACKAGE WITHIN 30 DAYS OF PURCHASE FOR A FULL REFUND. NO REFUNDS WILL BE GIVEN FOR RETURNED PRODUCTS WHICH HAVE MISSING COMPONENTS.

IF THIS SOFTWARE IS AN EVALUATION VERSION YOU MAY USE IT FOR NO LONGER THAN THIRTY (30) DAYS FROM THE DAY YOU RECEIVED IT, AFTER WHICH YOU MUST EITHER STOP USING THE SOFTWARE AND DESTROY ALL COPIES OF THE SOFTWARE OR UPGRADE THE SOFTWARE WITH A NON-EVALUATION VERSION OF THE SOFTWARE.

1. DEFINITIONS
i. "Kinesphere" means Kinesphere Corporation, 47 W. Division Street #180, Chicago, IL, USA 60610.
ii. "Kinesphere Software" means Kinesphere Interchange, modules as included by Kinesphere from time to time, and other Kinesphere Corporation products which may be included on the enclosed disks or contained in this package, along with all accompanying documentation.
iii. "You" and "your" refer to the person or entity that breaks the seal of the Kinesphere Software disk or documentation and opens it, or otherwise uses Kinesphere Software.
iv. "Agreement" means the Kinesphere Software License Agreement and Limited Warranty, and all subsequent versions thereof as amended from time to time, which you are either notified by mail or electronic means. Both the printed version and the electronic version shall be equally binding, but in the event of a dispute over its terms the written agreement maintained at the offices of Kinesphere shall be authoritative as to the terms and conditions.
v. "Server Computer" means the computer on which you install and operate Kinesphere Interchange software.

2. SOFTWARE LICENSE
I. Kinesphere Corporation grants you the non-exclusive license to use the enclosed Kinesphere Software for as long as you comply with the terms of this Agreement. You may:
i. install the Kinesphere Administration program on any number of computers.
ii. make two back-up copies of Kinesphere Software for use at a single site. You must reproduce and include Kinesphere's proprietary legends including, where applicable, notices with respect to copyrights, trademarks and confidentiality on these copies; these copies automatically become the property of Kinesphere and are subject to this agreement.
II. Kinesphere Corporation has significant economic interests at stake in Kinesphere Software which would be severely injured by unauthorized copying, resale use and reverse engineering. Therefore you may not:
i. make Kinesphere Software available to any person or entity other that your employees, who must use the software as specified above;
ii. install and operate Kinesphere Software on more than one computer at a time;
iii. copy any portion of Kinesphere Software except to make backup copies as allowed by this Agreement;
iv. distribute, rent, lease, loan, or resell Kinesphere Software and disks or copies of them;
v. decompile, reverse engineer, disassemble or otherwise attempt to convert Kinesphere Software into human readable form;
vi. remove, obliterate, deface, or in any way alter the notice of Kinesphere's proprietary rights of Kinesphere Software;
vii. modify, adapt, translate or create derivative works based on any portion of Kinesphere Software;
viii.attempt to use Kinesphere Software with more than the number of users or electronic mail-drops allowed by your License Limits;
viv. enable a downstream postoffice using the Kinesphere Interchange SMTP Access Component for postoffices not serviced by the Kinesphere Interchange Gateway.
III. Kinesphere Corporation may at any time replace, modify, alter, improve, enhance or change Kinesphere Software; all further Kinesphere Software acquired by you to upgrade your technology system, whether delivered on disk or downloaded electronically from Kinesphere or authorized distributors, is covered by this agreement. It is a condition of use of any such upgrade that the current version of this agreement, as distributed on disk, print, or downloaded electronically, applies and supersede any earlier agreement or version thereof.
IV. You may transfer Kinesphere Software and this license to another person as long as the other person agrees to accept the terms of this Agreement. If you transfer Kinesphere Software, you must at the same time transfer the documentation which accompanied the Kinesphere Software and either transfer or destroy all backup copies of Kinesphere Software, and any other software into which Kinesphere Software has been merged or incorporated. In addition, you must inform Kinesphere of the name and address of the person to whom Kinesphere Software has been transferred; Kinesphere will send the new user a Registration Card and a copy of this Agreement. 
V. Both your license and your right to use Kinesphere Software terminate automatically if you violate any part of this Agreement or if you choose to return the product. In the event of termination, you must immediately destroy all copies of Kinesphere Software, or return them to Kinesphere. In addition to recovery of damages and the obtaining of injunctive relief as provided by law, if legal action must be taken to enforce the restrictions contained in this Agreement, you will pay Kinesphere all reasonable legal fees incurred in enforcing it rights under this Agreement.

3. COPYRIGHT
Kinesphere Software is not sold to you; there is no transfer to you of any title or ownership of Kinesphere Software or any patent, copyright, trade secret, trade name, trademark, or other proprietary rights related to it, including without limiting the generality of the foregoing, the icons, sounds, graphics and layout included in Kinesphere Software. Kinesphere Software is owned by Kinesphere and is protected under national copyright law and international treaty.

4. LIMITED WARRANTY
Kinesphere warrants that the disks on which Kinesphere Software is recorded will be free from defects in materials and workmanship and that Kinesphere Software will conform substantially to the specifications established by Kinesphere for a period of ninety (90) days from the date of purchase of license. Kinesphere Software is not warranted for incompatible environments; call your reseller for information about hardware and software compatibility.

If any part of Kinesphere Software fails to comply with the warranties set out above, Kinesphere will replace the disk or other magnetic medium or, at Kinesphere's option, make a reasonable effort to correct the program error, provided that you return all copies of Kinesphere Software along with a copy of your paid invoice, to an authorized Kinesphere distributor within ninety (90) days of the date you purchased the license.

If Kinesphere Corporation is unable to correct the defective disks or program errors and provides no replacement, Kinesphere Corporation will refund the license fee you paid for the use of the Kinesphere Software. The refund fully satisfies your claims for Kinesphere Software or disk failure. Any replacement will be warranted for the rest of the original ninety (90) day warranty period or for thirty (30) days from the date that you received the replacement.

EXCEPT AS SPECIFICALLY SET OUT ABOVE, KINESPHERE CORPORATION WILL NOT BE LIABLE FOR ANY:
i. BUGS, ERRORS, OMISSIONS, DEFECTS, DEFICIENCIES OR NONCONFORMITIES IN ANY KINESPHERE SOFTWARE.
ii. IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
iii. IMPLIED WARRANTY RELATING TO COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
iv. CLAIM OF INFRINGEMENT.
v. CLAIM IN TORT, WHETHER OR NOT ARISING IN WHOLE OR IN PART FROM KINESPHERE'S FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY.
vi. CLAIM OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF DATA, REVENUE, OR USE, EVEN IF KINESPHERE CORPORATION OR ANY UNAUTHORIZED RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.

Kinesphere's aggregate liability arising from or relating to this Agreement or Kinesphere Software or documentation is limited to the total of all payments made by or for your for the license.

Some jurisdictions do not allow the exclusion of implied warranties or the limitation of liability for incidental or consequential damages, so that part of the above exclusions or limitations may not apply to you. This warranty gives you specific legal rights and you may also have rights which vary from jurisdiction to jurisdiction.

Any written or oral information or advice given by Kinesphere's dealer, reseller, distributor, agent or employee will in no way increase the scope of this warranty. You may not rely on any such written or oral communication.

Any dispute for an amount greater than the total of all payments make by or for you for the license, whether the dispute is either between you and Kinesphere, or between Kinesphere, you and other users of Kinesphere Software, arising out of this Agreement shall be submitted to a binding "mediation-arbitration", before a single mediator-arbitrator. Either party may apply to either the Arbitration and Mediation Institute of Ontario, to appoint a mediator-arbitrator, it the parties cannot agree to appoint one within thirty (30) days of notice of a dispute. A mediation-arbitration initiated by you must be accompanied by the requisite fee to initiate a preceding. If the mediation is unsuccessful in assisting the parties to reach a settlement, then the mediator-arbitrator will render a binding award which is not subject to appeal. The mediation-arbitration shall be conducted pursuant to the Rules of the Arbitration or Mediation Institute of Ontario and the Arbitration Act of Ontario. 
It is specifically agreed that the mediation or arbitration may be consolidated with others if arising out of the same circumstances. Nothing in this clause shall prohibit Kinesphere or it dealers, agents or consultants from commencing an action in a court of proper jurisdiction in order to collect fees or amounts owing for the purchase of Kinesphere Software by you.

5. GOVERNING LAW
This Agreement is governed by the laws of the State of Illinois and of the United States of America and each party attorns to the jurisdiction of Ontario.

6. U.S. GOVERNMENT RESTRICTIONS
Kinesphere Software and documentation are provided with restricted rights. The use, duplication, or disclosure by the Government is subject to restrictions as set forth in paragraph (c) (1) (ii) of the Rights in Technical Data Computer Software clause at 52 227-7013. The manufacturer of this software is Kinesphere Corporation, 47 W. Division Street #180, Chicago, IL, USA 60610, Tel. 312-337-7880, Fax 312-337-1361.

7. SUPPORT AND SERVICE
Although Kinesphere is not responsible for installing or maintaining Kinesphere Software, Kinesphere or its distributor offer support and updates to those users who complete and return any enclosed Registration Card or complete and submit the Registration Form on Kinesphere's web site.

If you have any questions about this license or Kinesphere Software, write to Kinesphere Corporation, Attn: Customer Service, 47 W. Division Street #180, Chicago, IL, USA 60610.


