GhostWriter Free Trial

Software License Agreement – April 8, 2011

You, or, if you represent an company or other organization, that company or organization (in either case, “You”), have completed an online order (“Order”) with Digital Fulcrum LLC (“Digital Fulcrum”) for either evaluation or commercial use of the Digital Fulcrum Ghost Writer software (“Software”).  This Software License Agreement (this “Agreement”) forms a legally binding agreement between Digital Fulcrum and You and contains the terms governing your use of the Software, whether for evaluation or commercial purposes.  Digital Fulcrum is willing to allow you to download the Software and grant You a limited, non-exclusive, non-transferable license to use the Software solely under the terms of this Agreement on the condition that You accept and agree to be bound by the terms of this Agreement. 

Please carefully read this Agreement.  By downloading the Software, or by otherwise accessing, installing or using the Software or any portion thereof, You acknowledge that You have read, understand, and agree to be bound by the terms of this Agreement as of the date on which you first download, access, install or use the Software (the “Effective Date”).  If You do not agree to the terms of this Agreement, Digital Fulcrum will not grant You a license to the Software, and You should not download, access, install or use  the Software or any portion thereof. 

1. Evaluation License.  Subject to the terms and conditions of this Agreement, Digital Fulcrum grants You a non-exclusive, personal, non-transferable, non-sublicensable limited evaluation license (“Evaluation License”) solely to install and configure the Software for Your internal testing and evaluation of the Software in a non-production, non-commercial environment during the “Evaluation Term” stated on your Order for the Evaluation License. 
2. Commercial License.  If you have separately purchased and paid for a commercial license from Digital Fulcrum (a “Commercial License”), then subject to the terms and conditions of this Agreement, Digital Fulcrum grants You a non-exclusive, personal, non-transferable, non-sublicensable limited license solely to install, configure and use the Software for your own business purposes on the number of Domains stated in your Order for the Commercial License.  Unless You have received confirmation from Digital Fulcrum of Your purchase of a Commercial License for the Software, Your use of the Software is strictly limited to the terms of the Evaluation License. 
3. Modifications.  The licenses granted to You under Sections 1 and 2 during the Evaluation Term and any Commercial Term will include a non-exclusive, personal, non-transferable, non-sublicensable limited license to modify the Software to create extensions, enhancements, supplements, revisions, fixes, or other modifications or changes (“Modifications”) to the Software, provided that You: (1) agree to provide copies of all such Modifications to the Software to Digital Fulcrum in both source code and object code form promptly upon completion of the Modifications; and (2) agree to and hereby grant to Digital Fulcrum an unrestricted right and license, with the right to grant sublicenses to others, to use, reproduce, display, perform, develop, modify, create derivative works of, sell, offer to sell, make, have made, distribute, lease, import, export, and otherwise practice, exploit and commercialize (“Use”) the Modifications, including as part of the Software provided to other licensees and customers of Digital Fulcrum. 
4. Third Party Code.  The Software may contain or include software code owned or provided by third-party licensors of Digital Fulcrum (“Third-Party Code”).  For any Third-Party Code indicated to be subject to the terms of a third party software license (a “Third-Party License”), the terms of the applicable Third-Party License will apply to the Third-Party Code independent of the terms of this Agreement.  All other Third-Party Code distributed to You by Digital Fulcrum may be used only under the terms of this Agreement.  Nothing in this Agreement limits Your rights under, or grants rights to You that supersede, the terms of any applicable Third-Party License. 
5. Restrictions.  Your use of the Software is limited to the express terms of the applicable license granted under this Agreement.  All use of the Software will be in accordance with any applicable documentation or specifications for the Software published by Digital Fulcrum.  All Software (including its structure, organization, and source code) constitutes valuable intellectual property of Digital Fulcrum. In addition to any other restrictions placed on the Software, You may not, and will not permit any third party to: (1) modify, adapt, alter, translate, or create derivative works from the Software; (2) use or merge the Software or any component or element thereof with other software not provided by Digital Fulcrum; (3) sublicense, distribute, sell, or otherwise transfer the Software to any third party ; (4) use the Software for service bureau use, or lease, rent or loan the Software or the use thereof to any third party; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software (except for any portion of the Software provided by Digital Fulcrum in source code form); (6) circumvent or attempt to circumvent any technological protection measure applied to any portion of the Software; or (7) remove, alter or obscure any copyright notice or any other proprietary notice that appears on or in the Software.  Notwithstanding the foregoing, You may make 1 copy of the Software solely for back-up purposes to replace the original copy and use such copy in accordance with the terms of this Agreement only if the original copy is damaged or destroyed. 
6. Feedback.  You agree to provide Digital Fulcrum with Your observations, comments, criticisms, suggested improvements and other feedback about the use, operation, functionality and features of the Software (collectively, Your “Feedback”).  Digital Fulcrum has the right to use the Feedback at Digital Fulcrum’s sole discretion, including incorporating any portion of the Feedback into the Software or any other products or services, without notice to, payment to or consent from You.  You agree to and hereby grant to Digital Fulcrum a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, fully paid, fully transferable, fully sublicensable license to Use the Feedback, in any form and for any purpose. 
7. Fees and Payment.  You agree to pay Digital Fulcrum all fees set forth in each Order and any Fees otherwise specified by Digital Fulcrum in connection with the Software (“Fees”).  All Fees will be billed as indicated in each Order.  If an Order does not specify any applicable billing terms, the Fees specified under that Order will be due and payable by You in advance on or before the first day of the calendar month to which the Fees apply.  If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant Digital Fulcrum the right to charge the credit card or debit the bank account provided to Digital Fulcrum for all Fees incurred under this Agreement.  Except as expressly specified herein, all Fees will be non-refundable once paid to Digital Fulcrum.  Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law.  Digital Fulcrum may change any portion of the Fees upon notice to You, such changes to take effect at the beginning of the next renewal term of this Agreement.  If Digital Fulcrum requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses.  The Fees do not reflect, and You will be responsible for, all use, sales, and other taxes imposed on the Software or any services provided under this Agreement. 
8. Term and Termination.

8.1. Term.  The term of the Agreement begins on the Effective Date.  Unless earlier terminated, the term of this Agreement will continue for the Evaluation Term and, if You have purchased a Commercial License from Digital Fulcrum, the applicable Commercial Term. 

8.2. Termination. 

(a)   Evaluation Term.  During the Evaluation Term, (i) Digital Fulcrum may terminate this Agreement for any reason effective immediately; and (ii) provided that You have paid Digital Fulcrum all applicable Fees then due under this Agreement and are otherwise in compliance with the terms of this Agreement, You may terminate this Agreement for any reason effective upon 15 days written notice to Digital Fulcrum. 

(b)   Commercial Term.  During any Commercial Term: (i) Digital Fulcrum may terminate this Agreement effective immediately upon written notice to You if You materially breach any term of this Agreement; and (ii) provided that You have paid Digital Fulcrum all applicable Fees then due under this Agreement and are otherwise in compliance with the terms of this Agreement, You may terminate this Agreement for any reason effective upon 15 days written notice to Digital Fulcrum.

(c)   Other Termination.  Digital Fulcrum may also terminate this Agreement as otherwise stated herein. 

8.3. Effect of Termination.  Upon termination or expiration of this Agreement for any reason: (a) all Fees or other amounts owed to Digital Fulcrum will become due and payable; (b) all rights and licenses to the Software granted to You in this Agreement will immediately cease to exist; (c) all obligations of Digital Fulcrum to provide any services to You in connection with any Software will cease; and (d) You must promptly discontinue all use of the Software, erase all copies of the Software on which the Software has been installed or used, and return or, at the option of Digital Fulcrum, destroy all copies of the Software in Your possession or control.  At the request of Digital Fulcrum, You will certify in writing to Digital Fulcrum that You have fully complied with the requirements of this Section.  Sections 5, 7, 8.3, 10, 12, 14, 15, 16, 19, 20, 21, and 24 will survive termination or expiration of this Agreement for any reason. 

9.     Support and Maintenance.  Except as may be set forth in an Order, Digital Fulcrum has no obligation to provide support or maintenance for the Software or to provide updates or upgrades to the Software.  Digital Fulcrum may provide support, maintenance, updates, or upgrades that are not required under this Agreement to You at its convenience.  Any updates or upgrades or any other repairs, replacements or modifications to the Software made available to You will be treated as part of the “Software” for purposes of this Agreement and will be subject to the terms and conditions of this Agreement applicable to Software.   

10.  Ownership.  The Software is licensed, not sold, to You for use solely under the terms of this Agreement. The Software and all worldwide intellectual property rights therein and relating thereto, are and will remain the exclusive property of Digital Fulcrum and its licensors.  Except for the limited rights expressly granted under Sections 1 and 2, You will have no right, title or interest (whether by implication, estoppel, or otherwise) in or to the Software or any intellectual property rights therein or thereto.  Digital Fulcrum and its licensors retain all rights, title and interest in and to any and all trademarks and logos of Digital Fulcrum and its licensors displayed on or in the Software. You agree not to challenge or contest Digital Fulcrum's and its licensors’ ownership of the Software. 

11.  Limited Warranty During Commercial Term.  If You have purchased a Commercial License, then for a period of 30 days from the beginning of the Commercial Term, Digital Fulcrum warrants that the Software will operate substantially in accordance with the specifications for the Software published by Digital Fulcrum.  Your sole and exclusive remedy for any breach of this warranty is for Digital Fulcrum to repair or replace the defective Software.  If, after reasonable efforts, Digital Fulcrum is unable to repair or replace the Software, Digital Fulcrum will reimburse You for the amount of the fee paid to Digital Fulcrum for the Commercial License of the Software upon return of the defective Software to Digital Fulcrum.  Any updates, upgrades, and any other Modifications to the Software will not extend the duration of this warranty.  This warranty applies only to the normal operation of Software during the Commercial Term and specifically excludes: (1) use or operation of the Software during the Evaluation Term; (2) Third Party Code or other software or hardware of any third-party; (3) use of the Software outside of the scope of this Agreement or outside of normal use or recommended operating environments; (4) Modification not provided by Digital Fulcrum or any interaction of the Software with any such Modifications; (5) failure to update the Software to the current version of the Software supplied by Digital Fulcrum; (6) installation or repair of the Software by anyone other than Digital Fulcrum (or a third party authorized by Digital Fulcrum); (7) accident, misuse, abuse, neglect or normal wear and tear; or (8) use of the Software in connection with other hardware, devices or systems with which the Software is not intended for use. 

12.  Disclaimer.  Digital Fulcrum does not warrant that the operation of Software will be uninterrupted or error-free or that the functions contained in the Software will operate in combinations that may be selected for use by You or that the Software meets any of Your requirements.  To the maximum extent permitted by applicable law, the Software, and any results obtained from the use thereof, are provided by Digital Fulcrum “AS IS” and, except as expressly set forth in Section 11 during any Commercial Term and in all cases during any Evaluation Term, Digital Fulcrum expressly disclaims all representations, warranties and conditions regarding the Software, whether express, implied or statutory, including without limitation, the implied warranties of title, merchantability, fitness for a particular purpose, and non-infringement.  The Software is not designed or intended for, and all rights granted under this Agreement are null and void in the case of, use of the Software in hazardous or high-risk environments, including, without limitation, nuclear facilities, aircraft navigation or communication systems, air traffic control systems, weapons systems, direct life-support systems, medical diagnostic systems, 911 communications systems, or any other application where the failure of the Software could lead directly to death, personal injury, or severe physical or property damage.  You assume all risk of use in such applications and Digital Fulcrum and its suppliers disclaim any responsibility or liability for any and all damages that may be incurred due to the use of the Software in such applications. 

13.  Infringement During Commercial Term.  If You have purchased a Commercial License, and if during the applicable Commercial Term Digital Fulcrum believes that any Software is or is likely to become the subject of an action based upon a claim that the Software, when used in accordance with this Agreement, alone and unmodified and not in combination with any Third Party Code or other software, product, service or business method, infringes any U.S. copyright or U.S. patent issued prior to the Effective Date or misappropriates any trade secret recognized under the Uniform Trade Secrets Act, Digital Fulcrum may, in its sole discretion, replace or modify the Software, procure for You the right to continue using the Software, or terminate this Agreement and require You to immediately return the Software to Digital Fulcrum.  These obligations are conditioned on You giving Digital Fulcrum prompt written notice of any such claim and providing Digital Fulcrum with reasonable assistance in addressing the claim.  THIS SECTION STATES Digital Fulcrum’S ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS OR ACTIONS AS TO THE SOFTWARE OR HARDWARE. 

14.  Limitation of Liability.  in no event will Digital Fulcrum be liable to You or to any third party for any special, indirect, incidental, exemplary, punitive, or consequential damages of any kind arising out of the use or inability to use the Software (including, without limitation, any loss or interruption of business, profits or data), even if Digital Fulcrum has been advised of the possibility of such loss or damages and whether or not such loss or damages are foreseeable.  Your rights as stated herein are exclusive remedies.  the total cumulative liability of Digital Fulcrum relating to this Agreement, the Software , or any operation of or results obtained from the Software, will not exceed the fee, if any, paid by You to Digital Fulcrum for any Commercial License of the Software under this Agreement.  In states where the foregoing limitation of liability is not permitted, Digital Fulcrum’s liability is limited to the maximum extent permitted by law. 

15.  Indemnification.  You will indemnify and hold harmless, and upon Digital Fulcrum’s request, defend, Digital Fulcrum, Digital Fulcrum’s licensees, and each of their respective employees, officers, directors, employees, contractors and affiliates, from and against any claims, losses, liabilities, damages, taxes, expenses and costs, including without limitation, attorneys fees and court costs arising out of or related to Your use of the Software.  Digital Fulcrum will give You prompt notice of any claim subject to this Section 15 and provide You with reasonable cooperation and, at Your request and expense, assistance in the defense or settlement of any claim subject to indemnification under this Section 15. 

16.  Confidentiality.  For purposes of this Agreement, “Confidential Information” means any business, technical, product development, financial or other information relating to the Software provided to You by Digital Fulcrum or otherwise obtained by You, provided that Confidential Information will not include information that you can demonstrate: (1) is or becomes generally known to the public without breach of this Agreement through no fault of You; (2) was in Your possession prior to first receiving it from Digital Fulcrum, or (3) You received from a third party without restriction on disclosure and without breach of a nondisclosure obligation.  You will maintain all Confidential Information in strict confidence and will exercise no less than reasonable care with respect to the handling and protection of all Confidential Information.  You will use the Confidential Information only during the term of this Agreement and only as expressly permitted herein.  You will disclose the Confidential Information only to Your employees and contractors as reasonably required in connection with the exercise of Your rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees or contractors).  Notwithstanding the above, You may disclose Confidential Information pursuant to a valid order or requirement of a court or governmental agency, provided that You first give reasonable notice to Digital Fulcrum to contest such order or requirement.  Any such disclosure of the Confidential Information by You will not be deemed to change, affect or diminish the confidential and proprietary status of such Confidential Information. 

17.  U.S. Government Users. The Software is a "commercial item" as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202­1 through 227.7202­4, all U.S. Government end users acquire the Software with only those rights set forth therein and in this Agreement, and do not acquire any other right, title or interest, express, implied or otherwise, in or to the Software.

18.  Export/Import.  The Software may be subject to export (and re-export) prohibitions and other controls administered by the U.S. Government, (including the Department of State, Department of Commerce and Department of Treasury) and other jurisdictions (including the jurisdiction in which You are located).  These include: (1) prohibitions against the use or transfer to countries as to which the U.S. maintains an embargo or other restriction (an "Embargoed Country"); (2) prohibitions against the transfer to or use by a national or resident of an Embargoed Country or any other person or entity designated by U.S. (a "Designated National"); or (3) controls on providing or giving access to the Software to the extent identified by the U.S. Export Administration Regulations (“EAR”) or the International Traffic in Arms Regulations (“ITAR”).  The lists of Embargoed Countries, Designated Nationals, and EAR and ITAR identifications are subject to change without notice.  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 and are not otherwise restricted from receiving the Software under applicable law.  You are responsible for and agree to comply with all export laws of the U.S. and any other applicable jurisdiction and assume sole responsibility for obtaining all permissions and licenses required under those laws to export, re-export or import the Software.  You will notify Digital Fulcrum immediately of any violations of these applicable laws and agree to cooperate with Digital Fulcrum in any reasonable manner to facilitate compliance with all such law. 

19.  Language and Currency.  English (U.S.) will be the language used in all notices and other communications under this Agreement and the English (U.S.) version of this Agreement and any notice or communication under this Agreement will prevail in the case of any ambiguity or inconsistency with any version in any other language.  Any translation of this Agreement or any notice or communication is for convenience only and You will pay all the costs of any such translation into any other language.  All currency denotations and transactions between the parties under this Agreement will be in U.S. dollars. 

20.  Dispute Resolution.  Any disputes, controversies, or claims arising under or relating to this Agreement, including without limitation, the formation, validity, binding effect, interpretation, performance, breach or termination of this Agreement, and the arbitrability of the issues submitted to arbitration under this Agreement and non-contractual claims relating to this Agreement (“Disputes”) that cannot be settled between the parties will be finally settled exclusively through binding arbitration under the arbitration rules of the International Chamber of Commerce (“ICC”) then in effect (the “Rules”).  In any Dispute the arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties, provided that if the parties cannot agree on the appointment of a single arbitrator within 30 days after either party delivers a request for arbitration (as specified in the Rules), a neutral arbitrator will be selected as provided in the Rules.  The arbitration will be conducted in the English language. The arbitration proceeding will take place in the Commonwealth of Virginia (U.S.A.).  Any arbitration under this Agreement will be conducted in accordance with the Rules of Civil Procedure of the Commonwealth of Virginia (U.S.A) with respect to discovery.  The award of the arbitrator will be the exclusive remedy of the parties for all Disputes presented or plead to the arbitrator.  The award of the arbitrator will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party.  Judgment upon any arbitration award may be entered in any court that has jurisdiction thereof.  Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement. 

21.  Applicable Law.  This Agreement and the arbitration of all Disputes under this Agreement will be governed exclusively by the laws of the Commonwealth of Virginia (U.S.A.), without regard to or application of conflicts of law rules or principles, as such laws apply to contracts between Virginia residents performed entirely within the Commonwealth of Virginia.  Subject to Section 20, the Federal and State Courts located within and having jurisdiction over the Commonwealth of Virginia (U.S.A.) will have exclusive jurisdiction over any disputes arising hereunder and each party irrevocably submits to the personal jurisdiction of such courts. The parties expressly exclude (as may be applicable) the application of the United Nations Convention on the International Sale of Goods.  The parties further agree that the Hague Convention, including the provisions of the Hague Convention on the Taking of Evidence, will not apply to any Dispute or other proceeding under the Agreement. 

22.  Assignment and Transfer.  You may not assign or transfer, by operation of law or otherwise, any of Your rights or delegate any of Your duties under this Agreement, in whole or in part, to any third party without the prior written approval of Digital Fulcrum.  For purposes of this Agreement, an assignment or transfer will include, without limitation, any change of control, merger, consolidation, reorganization, acquisition or similar transaction involving a party’s assets, equity or debt.  Any attempted assignment, transfer or delegation by You in violation of the foregoing will be null and void.  Following any attempted assignment, transfer or delegation, Digital Fulcrum may terminate this Agreement effective immediately upon written notice to You if Digital Fulcrum has not provided prior written approval of such assignment, transfer or delegation.  Digital Fulcrum may assign or transfer this Agreement with or without notice to You.  This Agreement will not be assignable or transferable by either party unless the assignee or transferee expressly assumes in writing the obligations of the assignor hereunder.  This Agreement will be binding upon and inure to the benefit of each party and its respective successors and permitted assigns. 

23.  Entire Agreement.  This Agreement includes these terms and all Orders for the Software placed by You and accepted by Digital Fulcrum, each of which is included herein and made a part hereof.  This Agreement is the complete and exclusive statement of the agreement between the parties regarding the Software and supersedes any other agreement or proposal, oral or written, and any other communications between the parties in relation to the Software and the subject matter of this Agreement. Any and all terms and conditions on any purchase order or other ordering document submitted by You in connection with the Software are hereby rejected and will have no force or effect on the terms hereof. 

24.  Additional Terms.  This Agreement is strictly between You and Digital Fulcrum and except as expressly set forth herein, there are no third party beneficiaries to this Agreement.  If any provision of this Agreement is held to be unenforceable, that provision will be modified so as to be enforceable to the greatest extent possible, or if such modification is not possible, will be removed and the remaining provisions will remain in full force. In the event any proceeding or lawsuit is brought by Digital Fulcrum or You in connection with this Agreement, the prevailing party in such proceeding or lawsuit will be entitled to receive its costs, expert witness fees and reasonable attorney’s fees, including costs and fees on appeal. The failure of either party to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. This Agreement will inure only to the benefit of, and be binding upon, Digital Fulcrum, You, and any valid successors and assigns. This Agreement will not be modified except by a subsequently dated written amendment or exhibit signed by both parties or by their duly authorized representatives.