NC SOFTWARE IS WILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND/OR USE THE SERVICES PROVIDED BY THIS SITE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY CLICKING ON "ACCEPT", YOU WILL INDICATE YOUR AGREEMENT WITH THEM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY OR PERSON, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY OR PERSON TO THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY OR PERSON, THEN NC SOFTWARE IS UNWILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES PROVIDED BY THIS SITE.
Effective Date: January 1, 2011
To review material modifications and their effective dates scroll to the bottom of the page.
1. Parties. The parties to this legal Agreement are you ("You" or the "Licensee"), and NC Software, Inc. ("NC Software") the owner of this website business. If you are not acting on behalf of yourself as an individual, then "you", "your", and "yourself" means your company or organization or the person you are representing. All references to "we," "us," "our," "this website" or "this site" shall be construed to mean this website business and NC Software.
3. Modification of Agreement. We reserve the right to modify this Agreement at any time by posting an amended Agreement that is always accessible through a link on this site and/or by giving you prior notice of a modification. You should check this Agreement periodically for modifications by scrolling to the bottom of this page for a listing of material modifications and their effective dates. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THIS SITE FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT OR PROVIDING YOU NOTICE OF A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE.
4. Subscription Services. Subscription services include access to the software and services accessible through or from this website (the "Software" or the "Services"). We reserve the right to update and modify the Services from time to time.
5.1 You will be granted a single login ID and password and your access and use the Services will be limited to one person at a time per ID and password. You agree not to access (or attempt to access) this site by any means other than through the interface we provide, unless you have been specifically allowed to do so in a separate agreement. You agree not to access (or attempt to access) this site through any automated means (including use of scripts or web crawlers), and you agree to comply with the instructions set out in any robots.txt file present on this site.
5.2 You are not authorized to (i) resell, sublicense, transfer, assign, or distribute the site, its Services or content; (ii) modify or make derivative works based upon the site, its Services or content; or (iii) "frame" or "mirror" any site, its Services or content on any other server or Internet-enabled device.
5.3 You are not authorized to use our Services or servers for the propagation, distribution, housing, processing, storing, or otherwise handling in any way lewd, obscene, or pornographic material, or any other material which we deem to be objectionable. The designation of any such materials is entirely at our sole discretion.
6. Ownership. The material provided on this site and via our Services is protected by law, including, but not limited to, United States copyright law and international treaties. The copyrights and other intellectual property rights in this material are owned by us and/or others. Except for the limited rights granted herein, all other rights are reserved.
7. Subscription Term. The term of your subscription shall be specified during the purchase process. After the expiration of this term, you may purchase another subscription in accordance with the terms and conditions posted at this site.
8. Termination. You agree that we may terminate your account and access to the Services for cause without prior notice, upon (i) any material breach of this Agreement, including without limitation any failure to pay fees as they become due or any unauthorized use of the site or Services, or (ii) requests by law enforcement or other government agencies. Termination of your account includes (i) removal of access to all Services, and (ii) deletion of your login data, password, and all related information. Further, you agree that all terminations shall be made in our sole discretion, and that we will not be liable to you or any third-party for any termination of your account or access to Services. If we elect to terminate this Agreement for cause, we may elect, in our sole discretion, not to refund any prepaid fees or other amounts to you.
9. Subscription Fees; Periodic Payment.
9.1 Payment of subscription fees may be by credit card online at this site, or by any other method approved by us. Fees are non-refundable, unless expressly provided otherwise on this site. If for any reason we are unable to charge your credit card with the full amount of the fees, or if we are charged back for any fee previously charged to your credit card, you agree that we may pursue all available remedies to pursue payment, including without limitation, suspension or termination of your account and rights to all Services from this site.
9.2 Your Account-Related Responsibilities. You are responsible for maintaining the confidentiality of your login ID, password, and any additional information that we may provide regarding accessing your account. If you knowingly share your login ID and password with another person who is not authorized to use the Services, this Agreement is subject to termination for cause. You agree to immediately notify us of any unauthorized use of your login ID, password, or account or any other breach of security.
10. License Grant for Content. Subject to the terms of this Agreement, you are granted non-exclusive rights to download and use the Content available for download from this website ("Content") only for use by you.
11. Restrictions for Content. You may copy, modify, and transfer the Content to others provided that you do not remove or obscure any proprietary rights notices or labels on the Content. You are not authorized to resell, sublicense, or use the Content for any commercial use or purpose.
12. Technical Support. We will use reasonable efforts to answer questions during our normal business hours regarding the use of the Services. We do not promise to provide any specific level of support or availability.
13. Disclaimers and Limitations of Liability.
13.1 EXCEPT AS MAY BE PROVIDED IN ANY SEPARATE WRITTEN AGREEMENTS SIGNED BY THE PARTIES, THE SERVICES, CONTENT, AND/OR PRODUCTS ON THIS SITE ARE PROVIDED "AS-IS", AND NEITHER WE NOR ANY OF OUR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO SUCH PRODUCTS, SERVICES, AND/OR CONTENT. EXCEPT AS MAY BE PROVIDED IN ANY SEPARATE WRITTEN AGREEMENT SIGNED BY THE PARTIES OR SEPARATE AGREEMENT ORIGINATING FROM THIS SITE, THIS SITE AND ITS LICENSORS SPECIFICALLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THIS SITE OR PRODUCTS, SERVICES AND/OR CONTENT ACQUIRED FROM THIS SITE, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, COMPLETENESS, TIMELINESS, CORRECTNESS, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. THIS SITE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THIS SITE, ITS PRODUCTS, SERVICES, AND/OR CONTENT: (A) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (C) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
13.2 THESE DISCLAIMERS CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. NO PURCHASE OR USE OF THE ITEMS OFFERED BY THIS SITE IS AUTHORIZED HEREUNDER EXCEPT UNDER THESE DISCLAIMERS. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE LAW. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. You ACKNOWLEDGE THAT NC Software WOULD NOT HAVE PROVIDED THE SOFTWARE ON THE TERMS AND CONDITIONS HEREIN WITHOUT THE DISCLAIMERS AND LIMITATIONS HEREIN.
13.3 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES OR THIS SITE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.4 Exclusions. NC SOFTWARE WILL NOT HAVE ANY LIABILITY FOR ANY INFRINGEMENT OR MISAPPROPRIATION CLAIM OF ANY KIND TO THE EXTENT THAT IT RESULTS FROM (A) ANY MODIFICATION TO THE SOFTWARE MADE BY A PARTY OTHER THAN NC SOFTWARE IF A CLAIM WOULD NOT HAVE OCCURRED BUT FOR SUCH MODIFICATION, (B) THE COMBINATION, OPERATION OR USE OF THE SOFTWARE WITH EQUIPMENT, DEVICES, SOFTWARE OR DATA OTHER THAN THE SOFTWARE, (C) LICENSEE’S FAILURE TO USE UPDATED OR MODIFIED VERSIONS OF THE SOFTWARE PROVIDED BY NC SOFTWARE WHICH WOULD AVOID A CLAIM, (D) NC SOFTWARE’S COMPLIANCE WITH ANY DESIGN, SPECIFICATION OR PLAN PROVIDED BY LICENSEE, (E) THE LICENSEE’S COMBINATION, OPERATION OR USE OF THE SOFTWARE OUTSIDE OF THE GEOGRAPHICAL LIMITS OF THE U.S., OR (F) THE LICENSEE’S USE OF THE SOFTWARE OTHER THAN IN ACCORDANCE WITH THIS AGREEMENT OR THE APPLICABLE DOCUMENTATION.
13.5 Exclusive Remedy. The provisions of this Section 13 set forth NC Software’s sole and exclusive obligations, and Licensee’s sole and exclusive remedies, with respect to infringement or misappropriation of intellectual property rights of any kind by the Software.
14. Confidential Information. The term “Confidential Information” shall mean the Software, excluding information that (a) is publicly available at the time of disclosure, (b) becomes publicly available through no fault of the Licensee, (c) is acquired rightfully by the Licensee from a third party who is not in breach of an agreement to keep such information confidential, or (d) is required to be disclosed by law. Licensee understands that the Software comprises Confidential Information and know-how that are the exclusive property of NC Software and agrees to maintain the secrecy of the Confidential Information and agrees not to use it except as provided herein.
15. Onward Transfer of Personal Information outside Your Country of Residence. Any personal information which we may collect on this site will be stored and processed in our servers located only in the United States. If you reside outside the United States, you consent to the transfer of personal information outside your country of residence to the United States.
16. Export Control. This site provides Services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. You acknowledge and agree that the site and Services shall not be used in, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to, countries to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
17. Registration Data. Registration is required for you to establish an account at this site. You agree (i) to provide certain current, complete, and accurate information about you as prompted to do so by our online registration form ("Registration Data"), and (ii) to maintain and update such Registration Data as required to keep such information current, complete and accurate. You warrant that your Registration Data is and will continue to be accurate and current, and that you are authorized to provide such Registration Data. You authorize us to verify your Registration Data at any time. If any Registration Data that you provide is untrue, inaccurate, not current or incomplete, we retain the right, in its sole discretion, to suspend or terminate rights to use your account. Solely to enable us to use information you supply us internally, so that we are not violating any rights you might have in that information, you grant to us a nonexclusive license to (i) convert such information into digital format such that it can be read, utilized and displayed by our computers or any other technology currently in existence or hereafter developed capable of utilizing digital information, and (ii) combine the information with other content provided by us in each case by any method or means or in any medium whether now known or hereafter devised.
18. U.S. Government End-Users. The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
19. How We Treat Postings To This Site. We will not treat information that you post to areas of this site that are viewable by others (for example, to a blog, forum or chat-room) as proprietary, private, or confidential. We have no obligation to monitor posts to this site or to exercise any editorial control over such posts; however, we reserve the right to review such posts and to remove any material that, in our judgment, is not appropriate. Posting, transmitting, promoting, using, distributing or storing content that could subject us to any legal liability, whether in tort or otherwise, or that is in violation of any applicable law or regulation, or otherwise contrary to commonly accepted community standards, is prohibited, including without limitation information and material protected by copyright, trademark, trade secret, nondisclosure or confidentiality agreements, or other intellectual property rights, and material that is obscene, defamatory, constitutes a threat, or violates export control laws.
20. Defamation; Communications Decency Act Notice. This site is a provider of "interactive computer services" under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation and other claims arising out of any postings to this site by third parties is limited as described therein. We are not responsible for content or any other information posted to this site by third parties. We neither warrant the accuracy of such postings or exercise any editorial control over such posts, nor do we assume any legal obligation for editorial control of content posted by third parties or liability in connection with such postings, including any responsibility or liability for investigating or verifying the accuracy of any content or any other information contained in such postings.
23. Notices. We may give notice to you by means of (i) a general notice in your account information, (ii) by electronic mail to your e-mail address on record in your Registration Data, or (iii) by written communication sent by first class mail or pre-paid post to your address on record in your Registration Data. Such notice shall be deemed to have been given upon the expiration of forty eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to us (such notice shall be deemed given when received by us) at any time by any of the following: (a) by letter sent by confirmed facsimile to us at the following fax number, (804) 205-5189; or (b) by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us as follows: NC Software, 2711 Centerville Rd, PMB 5115, Suite 120, Wilmington, DE 19808, in either case, addressed to the attention of "President of the Company". Notices will not be effective unless sent in accordance with the above requirements.
24. Arbitration. Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Richmond, Virginia, USA, and may be conducted by telephone or online. The arbitrator shall apply the laws of Commonwealth of Virginia, USA to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney's fees and costs up to $1000.00.
25. U.S. Government End-Users. The software for this site consists of "commercial items", as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government end-users of this site acquire only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
26. General Provisions.
26.1 Severability. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
26.2 Survival. Those provisions the survival of which is necessary for the interpretation or enforcement of this Agreement shall continue in full force and effect in accordance with their terms notwithstanding the expiration or termination hereof. Such clauses to include, without limitation, the following numbered sections or paragraphs: 6.2, 6.3, 12, 14, 15, 17, 18, 21, 25, 26 and 27.
26.3 Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of any provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
26.4 Consent to Use of Data. Licensee agrees that NC Software and its affiliates may collect and use technical information to the extent gathered as part of the product support services and/or activation, if any, related to the Software. NC Software may use this information solely to improve our products or to provide customized services to licensee and will not disclose this information in a form that personally identifies Licensee.
26.5 Assignment. Licensee may not assign, sublicense or otherwise transfer its rights, duties or obligations under this Agreement, in whole or in part, to anyone and any attempt to do so shall be deemed a material breach of this Agreement.
26.6 Reservation of Right to Amend the Agreement. NC Software reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional terms or conditions on the use of the Software. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as “Additional Terms”) will be effective immediately and incorporated into this Agreement. The continued use of the Software will be deemed to constitute acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference. Except as specifically permitted in the preceding sentence or other specific language in this Agreement, no amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties.
26.7 Consent to Receiving E-Mail. Licensee agrees to receive e-mail from NC Software during the term of the Agreement.
26.8 Force Majeure. If the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, terrorism, riot, fire, acts of the common enemy, judicial or government action, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent it is prevented, hindered or delayed by such causes.
26.9 Applicable Law and Forum. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, U.S, excluding its conflicts of law rules and the United Nations Convention on the International Sale of Goods. Any action or suit related to this Agreement shall be brought in the state or federal courts sitting in the Commonwealth of Virginia.
26.10 Legal Expenses. If NC Software must bring an action or proceeding to enforce this Agreement or if it substantially prevails in an action or proceeding brought by the Licensee, it shall be entitled to recover its reasonable attorneys’ fees and costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.
26.11 United Nations Convention and UCITA. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. The parties agree that the Uniform Computer Transactions Act or any version thereof, adopted by any state, in any form ("UCITA"), shall not apply to this Agreement, and to the extent that UCITA may be applicable, the parties agree to opt out of the applicability of UCITA pursuant to the opt-out provision(s) contained therein.
26.12 Controlling Language. This Agreement is written in English, and English is its controlling language. If you are located outside the U.S., then the following provisions shall apply: (i) Les parties aux presentes confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui siy rattache, soient rediges en langue anglaise (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); and (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use this site, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this agreement enforceable.
26.13 Read and Understood. LICENSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS.
Material Modifications Since January 1, 2011: none.