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IMPORTANT – SOFTWARE LICENSE TERMS – READ CAREFULLY

 

Note: This license agreement is provided for your reference.  It is what you will find in the Never-Search software application that you would install on your computer. The Never-Search software application is what uses the software downloads which are available on this Never-Search website.  Never-Search is willing to license these software downloads to you only upon the condition that you accept all of the terms contained in the standard Never-Search binary code license agreement referenced below. PLEASE READ THE AGREEMENT CAREFULLY. BY DOWNLOADING OR INSTALLING THIS SOFTWARE, YOU ACCEPT THE TERMS OF THE AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, DO NOT DOWNLOAD OR INSTALL ANY OF THIS SOFTWARE.

 

Unless it is superseded by a signed license agreement between you and Never-Search, Never-Search is willing to license the software, data, or documentation to you only on the condition that you accept all of the terms and conditions contained in this Never-Search LICENSE AGREEMENT.  These terms apply to the Never-Search software, including the media on which you received it, and any Never-Search; updates, supplements, Internet- based services and support services for this software. PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. If you do not consent to the terms of this agreement, DO NOT INSTALL OR USE THE SOFTWARE. BY DOWNLOADING OR INSTALLING THIS SOFTWARE, YOU ACCEPT THE TERMS OF THIS LICENSE AGREEMENT.  THE SOFTWARE, DATA, OR DOCUMENTATION WILL NOT BEGIN DOWNLOADING TO OR INSTALLING ONTO YOUR COMPUTER SYSTEM UNTIL YOU HAVE AGREED TO THE TERMS AND CONDITIONS OF THE NEVER-SEARCH LICENSE AGREEMENT BY CLICKING "I accept the License Agreement" BELOW.  IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS AS STATED, THEN NEVER-SEARCH IS UNWILLING TO LICENSE THE SOFTWARE, DATA, OR DOCUMENTATION TO YOU AND YOU SHOULD CLICK "I do not accept the License Agreement" BELOW, IN WHICH EVENT, THE SOFTWARE, DATA, OR DOCUMENTATION WILL NOT BE DOWNLOADED TO OR INSTALLED ONTO YOUR COMPUTER SYSTEM.  IF YOU ARE NOT WILLING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, DO NOT DOWNLOAD OR INSTALL THE SOFTWARE.

 

NEVER-SEARCH LICENSE AGREEMENT (1/2007)

 

This Never-Search License Agreement (hereinafter referred to as "License Agreement") is between you ("Licensee") and Never-Search, Inc. ("Never-Search"), a California corporation, with its principal place of business at 10090 Pasadena Avenue, Cupertino, California, 95014, USA.

 

ARTICLE 1-DEFINITIONS

 

Definitions-As used herein, the following words, phrases, or terms in this License Agreement shall have the following meanings:

 

(a) "Data" means any Never-Search or third party data vendor(s)' digital data set(s) including, but not limited to, geographic, vector data coordinates, raster, reports, Places (POI) data, including geographic coordinates, or associated tabular attributes in Never-Search geographic information system (GIS) software compatible format(s) supplied under this License Agreement.  (b) "Documentation" means all of the printed and digital materials including, but not limited to, user documentation, training documentation, or technical information and briefings supplied under this License Agreement.  (c) "Software" means the actual copy of all or any portion of Never-Search's or third party vendor(s) proprietary GIS software technology, computer software code, components, dynamic link libraries (DLLs), and programs delivered on any media or downloaded from the Internet, including, but not limited to, alpha, beta, prerelease, trial evaluation, demonstration, or restricted versions, or final commercial release provided in source, object, or executable code format(s), inclusive of backups, updates, service packs, sample code, or merged copies permitted hereunder or subsequently supplied under this License Agreement.

 

ARTICLE 2-INTELLECTUAL PROPERTY RIGHTS AND RESERVATION OF OWNERSHIP

 

The Software, Data, and Documentation are owned by Never-Search and its licensor(s) and are protected by United States laws and applicable international laws, treaties, and conventions regarding intellectual property or proprietary rights inclusive of trade secrets. Patents are pending.  Portions of Never-Search for Golf include technology powered by BusinessMAP (Copyright © 2002–2007, Environmental Systems Research Institute, Inc.  All Rights Reserved.). Never-Search and its licensor(s) retain all rights, title, and ownership not granted herein to all copies of the Software, Data, and Documentation licensed under this License Agreement.  From the date of receipt, Licensee agrees to use reasonable effort to protect the Software, Data, and Documentation from unauthorized use, reproduction, distribution, or publication.  All rights not specifically granted in this License Agreement are reserved to Never-Search and its licensor(s).

 

ARTICLE 3-GRANT OF LICENSE

 

3.1 Grant of License-In consideration of the mutual promises and covenants provided herein and for other good and valuable consideration, and conditioned upon compliance with all of the terms and conditions set forth in this License Agreement including, but not limited to, Article 4, Never-Search grants to Licensee a personal, nonexclusive, nontransferable license to:

 

(a) Use the Software, Data, and Documentation as a single package for Licensee's own internal use only; and (b) Access and use any secure Never-Search Web site resources made available to Licensee for Licensee's internal use only, provided that Licensee follows Never-Search's terms of use policy specified therein, including, without limitation, those terms of use set forth in this License Agreement.  All password or controlled access information provided by Never-Search or its authorized distributor shall be treated as Never-Search confidential information.

 

3.2 Beta License-In the event Never-Search accepts Licensee into a current Beta Testing program, Licensee may be provided copies of alpha, beta, and/or prerelease (hereinafter collectively referred to as "Beta") Software for the limited purpose of testing the Beta Software in accordance with the Beta testing policies then in effect.  Beta Software and Documentation delivered are confidential and proprietary to Never-Search and contain trade secrets, inclusive of unpublished specifications.  In consideration of the rights granted herein, Licensee agrees to retain all Beta Software and Documentation provided to Licensee in confidence.  Licensee shall maintain all results of testing in confidence and agrees not to disclose to any third party details pertaining to the Beta Software, Documentation, test results, or errors encountered.  Never-Search reserves the right to determine which Beta Software and Documentation, subsequent interim beta release(s), or patch(es) will be made available to Licensee to test during the term of the License Agreement.  Beta Software is subject to change prior to its commercial release and may never be commercially released.  Licensee is advised that such Software is not suitable or licensed for full use and accepts all responsibility for use of the same and any results generated.

 

3.3 Evaluation or Demonstration License-Never-Search may extend a limited term evaluation and/or demonstration license(s) under the terms of this License Agreement for a time period set by a Software or Data expiration date, or for the duration authorized in any supporting documentation supplied by Never-Search.

 

3.4 Consultant Access-Licensee may provide access to the Software, Data, or Documentation to any consultant or contractor of Licensee, provided that the consultant or contractor is using the Software, Data, or Documentation exclusively for the benefit of Licensee.  Licensee shall be responsible for compliance by consultants or contractors with the terms and conditions of this License Agreement.

 

3.5 Commercial Application Service Provider-Use of Never-Search Software, Data, or Documentation in a commercial Application Service Provider (ASP) business model is subject to execution of a written ASP license agreement and the payment of the appropriate additional license fees.  For purposes of this License Agreement, a commercial ASP means a Licensee who uses Never-Search Software, Data, or Documentation for a site or service, operates the site or the service for a profit, and generates revenue by charging for access to the site or service (by selling data, pay-per-view, subscription fee, or similar means).

 

3.6 Single Unit – The components of the Software licensed hereby are licensed as a single unit.  Licensee understands and agrees that it cannot and will not separate the components and install them on different devices.

 

3.7 Additional Licensing Requirements and/or Use Rights; Use of Maps – (a) Licensee may copy maps and other Date, Documentation and/or other information contained in the software for its own internal, noncommercial use.  (b) Some of the information contained in the Software, Data, and/or Documentation may be inaccurate and may produce incorrect results.  Licensee does not expect the software to provide or depict exact distances, directions or geographic features.  Licensee may not use the Software in an unsafe way.

 

3.8 Agreement to Register – Licensee agrees to register the Software so that Never-Search may notify it of updates or corrections to the Software and in order to obtain the benefit of any warranties or guarantees given or made by Never-Search, if any, with respect to the Software.  Licensee aggress to keep Never-Search apprised promptly of any change in email address, mailing address and/or phone number so that it can be notified of such updates and corrections.

 

3.9 Agreement to Modifications – Never-Search may modify this License Agreement from time to time and such modification shall be effective upon posting by Never-Search on the Never-Search Website.  Licensee agrees to be bound to any changes to this License Agreement when it uses the Never-Search services after any such modification is posted.  It is therefore important that Licensee reviews this Agreement, as posted on the Never-Search Website to ensure that it is updated as to any changes.

 

 

ARTICLE 4-SCOPE OF USE

 

4.1 Permitted Uses

 

(a) Licensee may (i) install and store copies onto electronic storage device(s) and (ii) only use the Software, Data, and Documentation as described in Article 4 -Scope of Use and in accordance with the licensed configuration provided at the time of order, Software registration, or License Manager issuance.  (b) Licensee may make one (1) copy of the Software, Data, and Documentation for archival purposes during the term of this License Agreement.  Additionally, Licensee may make routine computer backups and implement a redundant Software installation for failover operations during the period the primary site is not operational. The redundant Software installation shall remain dormant except for system maintenance and updating of databases while the primary site is operational.  (c) Licensee may use, copy, reproduce, publish, publicly display, or redistribute map images derived from Never-Search branded Data in hard-copy or static, electronic formats (i.e., .gif, .tif, etc.) provided that Licensee affixes an attribution statement to the map images acknowledging Never-Search or its licensors as the source of the portion(s) of such Data displayed, printed, or plotted.  The Never-Search branded Data shall not be used separately from Never-Search Software.  Otherwise, Licensee may use the Data only as described in the Distribution Rights section of the help or metadata files delivered with the Software, Data, and Documentation, or subject to the third party Data vendor's terms.  (d) Licensee may use, copy, or prepare derivative works of the Documentation supplied in digital format and thereafter reproduce, display, and redistribute the customized documentation only for Licensee's own internal use.  The portion(s) of the Documentation supplied in digital format merged with other software and printed or digital documentation shall continue to be subject to the terms and conditions of this License Agreement and shall provide the following copyright attribution notice acknowledging the proprietary rights of Never-Search and its licensor(s) in the Documentation supplied in digital format: "Portions of this document include intellectual property of Never-Search and its licensor(s) and are used herein under license.  Copyright © [Insert the actual copyright date(s) from the source materials] Never-Search and its licensor(s).  All rights reserved."

 

4.2 Uses Not Permitted

 

(a) Licensee shall not sell; rent; lease; sublicense; lend; assign; time-share; or act as a service bureau or Application Service Provider (ASP) that allows third party access to the Software, Data, or Documentation except as provided herein; or transfer, in whole or in part, access to prior or present versions of the Software, Data, or Documentation, any updates, or Licensee's rights under this License Agreement.  (b) Licensee shall not redistribute the Software registration number/license authorization file(s).  (c) Licensee shall not redistribute the Software, in whole or in part, including, but not limited to, extensions, components, or DLLs without the prior written approval of Never-Search as set forth in an appropriate redistribution license agreement. (d) Licensee shall not redistribute the Data, in whole or in part, including, but not limited to, geographic, vector data coordinates, raster, reports, Places (POI) data, including geographic coordinates, without the prior written approval of Never-Search as set forth in an appropriate redistribution license agreement.  (e) Licensee shall not reverse engineer, decompile, or disassemble the Software, Data, or Documentation, or work around any technical limitations in the software, except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction in order to protect Never-Search and its licensor(s) trade secrets and proprietary information contained in the Software, Data, or Documentation. (f) Licensee shall not make any attempt to circumvent the technological measure(s) (e.g., License Manager, etc.) that controls access to or use of the Software, Data, and Documentation, except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction.  (g) Licensee shall not use the Software to transfer or exchange any material where such transfer or exchange is prohibited by copyright or any other law.  (h) Licensee shall not remove or obscure any Never-Search or its licensor(s) patent, copyright, trademark, or proprietary rights notices contained in or affixed to the Software, Data, or Documentation.  (i) After a reasonable transition period for updating to the most current version of the Software, Licensee shall cease using all prior version(s) of the Software that Licensee has elected to update to the most current version(s) of the Software.  When the transition to the most current version(s) of the Software is complete, the quantity of Software licenses in use by Licensee at any given time shall not exceed the total quantity licensed by Never-Search in accordance with the licensed configuration on file with Never-Search Customer Service or Never-Search's authorized distributor.  (j) With the exception of Server Software application licenses for which such licensed uses are contemplated, Licensee shall not provide access to or allow affiliates or other third parties to use the Software, Data, or Documentation in a distributed computing environment.  This restriction shall not apply to Section 3.4, Consultant Access.  (k) Licensee may not distribute or post Data, reports, or other output from Never-Search Software or Data or services on the Internet without the express written consent of Never-Search.  (l) The Data and Documentation are intended for use solely with Never-Search products, including the Never-Search Map and/or Never-Search provided Software and Licensee's use of the Software, Date and Documentation is limited to such uses. (m) Licensee may not use the Software, Data or Documentation to provide real-time vehicle guidance. Licensee may not calculate or recommend a route or ordering of destinations based on the location of more than one vehicle. 

 

ARTICLE 5-MAINTENANCE

 

Maintenance consists of Software, Data, or Documentation updates and access to technical support and other benefits specified in the most current applicable Never-Search or its distributor's Support Services Policy.  As some portions of this software are licensed to Never-Search "as is", Never-Search may not provide support services for it.

 

ARTICLE 6-TERM AND TERMINATION

 

The license granted to Licensee by this License Agreement shall commence upon the acceptance of this License Agreement and shall continue until such time that (i) Licensee elects to discontinue use of the Software, Data, or Documentation and terminates this License Agreement or (ii) either party terminates this License Agreement for a material breach that is not cured within ten (10) days of written notice to the other party, except that termination is immediate for a material breach of a nature that it is impossible to cure.  Upon termination of this License Agreement, Licensee shall uninstall, remove, and destroy all Software, Data, and Documentation, and any whole or partial copies, modifications, or merged portions in any form and execute and deliver evidence of such deinstallation and destruction to Never-Search or its authorized distributor.

 

ARTICLE 7-LIMITED WARRANTIES AND DISCLAIMERS

 

7.1 Limited Warranties-For a period of ninety (90) days from the earliest of the date of installation, date of registration or date of delivery of the Software, Data, or Documentation to Licensee, Never-Search represents and warrants that (i) the unmodified Software will substantially conform to the published Documentation and (ii) the media upon which the Software, Data, and Documentation is provided will be free from defects in materials and workmanship under normal use and service.

 

7.2 Data Disclaimer-If included under this License Agreement, the Data has been obtained from sources believed to be reliable, but its accuracy and completeness are not guaranteed.  The Data may contain some nonconformities, defects, errors, or omissions.  Never-Search AND ITS LICENSOR(S) MAKE NO WARRANTY WITH RESPECT TO THE DATA.  Without limiting the generality of the preceding sentence, Never-Search and its licensor(s) do not warrant that the Data will meet Licensee's needs or expectations, the use of the Data will be uninterrupted, or that all nonconformities can or will be corrected.  Never-Search and its licensor(s) are not inviting reliance on this Data, and Licensee should always verify actual Data including, but not limited to, map, spatial, raster, Places (POI) data and tabular information.

 

7.3 High Risk Activities

 

(a) The Software, Data, and Documentation are not fault-tolerant and are not designed, manufactured, or intended for use or resale for insurance underwriting or with critical health and safety or online control equipment in hazardous environments that require fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, emergency response, terrorism prevention or response, life support, or weapons systems ("High Risk Activities").  NEVER-SEARCH SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.  (b) To the extent permitted by law, Licensee agrees to indemnify, defend, and hold Never-Search, its officers, directors, employees, agents, subcontractors, licensors, successors, and assigns harmless from and against any and all liability, losses, claims, expenses (including attorneys' fees), demands, or damages of any kind, including direct, indirect, special, punitive, incidental, or consequential damages, arising out of or in any way connected with Licensee's use or permitting the use by others of the Software, Data, and/or vendor's hardware for High Risk Activities.  Delivery of the Software, Data, and vendor's hardware does not constitute a waiver of the rights and obligations set forth in this Article.

 

7.4 General Disclaimer-EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, NEVER-SEARCH DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, SYSTEM INTEGRATION, AND NONINFRINGEMENT. NEVER-SEARCH DOES NOT WARRANT THAT THE SOFTWARE, DATA, OR DOCUMENTATION WILL MEET LICENSEE'S NEEDS, OR THAT LICENSEE'S OPERATION OF THE SAME WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL NONCONFORMITIES CAN OR WILL BE CORRECTED.

 

LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT ALPHA, BETA, PRERELEASE, RESTRICTED VERSION, SAMPLE CODE AND EVALUATION SOFTWARE ARE DELIVERED "AS-IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, SYSTEM INTEGRATION, AND NONINFRINGEMENT. LICENSEE ASSUMES ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE BETA AND EVALUATION SOFTWARE.

 

7.5 Exclusive Remedy-Licensee's exclusive remedy and Never-Search's entire liability for breach of the limited warranties set forth in this Article 7 shall be limited, at Never-Search's sole discretion, to (i) replacement of any defective media; (ii) repair, correction, or a work-around for the Software subject to the Never-Search Support Services Policy; or (iii) return of the license fees paid by Licensee for the Software, Data, or Documentation that does not meet Never-Search's Limited Warranty, provided that Licensee uninstalls, removes, and destroys all copies of the Software, Data, or Documentation and executes and delivers evidence of such deinstallation and destruction to Never-Search or its authorized distributor.

 

ARTICLE 8-LIMITATION OF LIABILITY

 

8.1 Disclaimer of Certain Types of Liability-IN NO EVENT SHALL NEVER-SEARCH OR ITS LICENSOR(S) BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST PROFITS; LOST SALES OR BUSINESS EXPENDITURES; INVESTMENTS; OR COMMITMENTS IN CONNECTION WITH ANY BUSINESS, LOSS OF ANY GOODWILL, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS LICENSE AGREEMENT OR USE OF THE SOFTWARE, DATA, OR DOCUMENTATION, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT NEVER-SEARCH OR ITS LICENSOR(S) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

 

8.2 General Limitation of Liability-EXCEPT AS PROVIDED IN ARTICLE 9-INFRINGEMENT INDEMNITY, IN NO EVENT WILL NEVER-SEARCH'S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, EXCEED THE AMOUNTS PAID TO NEVER-SEARCH BY LICENSEE FOR SOFTWARE, DATA, OR DOCUMENTATION PURSUANT TO THIS LICENSE AGREEMENT.

 

8.3 Applicability of Disclaimers and Limitations-Licensee agrees that the limitations of liability and disclaimers set forth in this License Agreement will apply regardless of whether Licensee has accepted the Software, Data, or Documentation or any other product or service delivered by Never-Search.  The parties agree that Never-Search has set its prices and entered into this License Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.

 

ARTICLE 9-INFRINGEMENT INDEMNITY

 

9.1 Never-Search shall defend, indemnify, and hold harmless Licensee from and against any loss, liability, cost, or expense, including reasonable attorneys' fees, which may be incurred by Licensee as a result of any claims, actions, or demands by a third party alleging that the Software, Data, or Documentation infringes a U.S.  patent, copyright, or trademark provided:

 

(a) Licensee promptly notifies Never-Search in writing of the claim thereof; (b) Never-Search has sole control of the defense of any actions and negotiations related to the defense or settlement of any claim; and (c) Licensee cooperates fully in the defense of the claim.

 

9.2 If Never-Search believes that the Software, Data, or Documentation is or will become the subject of an infringement claim, or in the event that use of the Software, Data, or Documentation is enjoined, Never-Search, at its own expense, may either (i) obtain the right for Licensee to continue using the Software, Data, or Documentation or (ii) modify the Software, Data, or Documentation to make it noninfringing while maintaining substantially similar software functionality or data/informational content.  If neither of such alternatives is commercially reasonable, the infringing items shall be returned to Never-Search and Never-Search's sole liability shall be to refund the unused portion of any license and/or subscription fees paid by Licensee.

 

9.3 Never-Search shall have no obligation hereunder to defend Licensee or to pay any resulting costs, damages, or reasonable attorneys' fees for or with respect to any claims, actions, or demands alleging (i) infringement that arises by reason of combination of noninfringing items, however acquired, with any items not supplied by Never-Search; (ii) infringement to the extent arising from material alteration of the Software, Data, or Documentation by anyone other than Never-Search, its agents, or its contractors; (iii) the direct or contributory infringement of any process patent by Licensee through the use of the Software, Data, or Documentation other than a process patent that is necessarily infringed by the internal processes executed within the Software or Data itself when the Software or Data is executed for its intended purpose; (iv) continued allegedly infringing activity by Licensee after it has been notified of the possible infringement; or (v) continued allegedly infringing activity by Licensee to the extent it arises from failure of Licensee to use the updated or modified Software, Data, or Documentation provided by Never-Search for avoiding infringement.

 

THE FOREGOING STATES THE ENTIRE OBLIGATION OF NEVER-SEARCH WITH RESPECT TO INFRINGEMENT OR ALLEGATION OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

 

ARTICLE 10-GENERAL PROVISIONS

 

10.1 Export Control Regulations-Licensee expressly acknowledges and agrees that Licensee shall not export, re-export, or provide the Software, Data, or Documentation, in whole or in part, to (i) any country to which the United States has embargoed goods; (ii) any person on the U.S.   Treasury Department's list of Specially Designated Nationals; (iii) any person or entity on the U.S.  Commerce Department's Table of Denial Orders; or (iv) any person or entity where such export, reexport, or provision violates any U.S.  export control law or regulation.  Licensee shall not export the Software, Data, and/or Documentation or any underlying information or technology to any facility in violation of these or other applicable laws and regulations.  Licensee represents and warrants that it or its employees, consultants, or customers who gain access to the Software, Data, or Documentation are not a national, resident, located in or under the control of, or acting on behalf of any person, entity, or country subject to such U.S. export controls.

 

10.2 Taxes and Fees, Shipping Charges-License fees quoted to Licensee are exclusive of any and all taxes or fees including, but not limited to, sales tax, use tax, value-added tax (VAT), customs, duties, or tariffs, and shipping and handling charges.

 

10.3 No Implied Waivers - The failure of either party to enforce any provision of this License Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.

 

10.4 Severability-The parties mutually agree that if any provision of this License Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make the intent of the language enforceable.  Should any term of this License Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have effect on the remaining terms hereof.

 

10.5 Successor and Assigns-Licensee shall not assign, sublicense, or transfer Licensee's rights or delegate its obligations under this License Agreement without Never-Search's prior written consent, and any attempt to do so without consent shall be void.  This License Agreement shall be binding upon the respective successors and assigns of the parties to this License Agreement.  Notwithstanding, a U.S. Government contractor may assign its rights under this License Agreement to a U.S.  Government Agency upon written notice to Never-Search if the U.S. Government Agency assents to the terms of this License Agreement.

 

10.6 Survival of Terms-The provisions of Articles 6, 7, 8, 9, and 10 of this License Agreement shall survive the expiration or termination of this License Agreement for any reason.

 

10.7 Equitable Relief-Licensee agrees that any breach of this License Agreement by Licensee may cause irreparable damage and that, in the event of such breach, in addition to any and all remedies at law, Never-Search shall have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction to prevent violation of these terms and without the requirement of posting a bond or undertaking or proving injury as a condition for relief.

 

10.8 Commercial Terms and Conditions for U.S. Government Use-This License Agreement contains Never-Search's commercial terms and conditions. Licensee's rights in the Software, Data, and Documentation are strictly limited to the uses granted by this License Agreement pursuant to FAR 12.211, FAR 12.212, and DFARS 227.7202.  In the event any court, arbitrator, or board holds that the U.S. Government has greater rights to any portion of the Software, Data, or Documentation, such rights shall extend only to the portion(s) affected and use, duplication, or disclosure by the U.S. Government is subject to restrictions as provided in FAR 52.227-19 (June 1987), FAR 52.227-14 (ALT III) (June 1987), DFARS 252.227-7015 (NOV 1995), or NFS 1852.227-86 (December 1987), as applicable.  No other license terms or conditions shall apply unless expressly agreed in writing by Never-Search and Licensee.  Never-Search Software is unpublished and all rights reserved under copyright laws of the United States.

 

10.9 Governing Law, Arbitration

 

A.  Licensees in the United States of America, Its Territories, and Outlying Areas-This License Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to conflict of laws principles.  Except as provided in Article 10.7 above, any dispute arising out of or relating to this License Agreement, or the breach thereof, which cannot be settled through negotiation, shall be finally settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  If Licensee is a U.S. Government agency, this License Agreement is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613), in lieu of the Arbitration provisions of this clause.  B. All Other Licensees-Except as provided in Article 10.7 above, all disputes arising in connection with this License Agreement that cannot be settled through negotiation shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one (1) arbitrator appointed in accordance with said Rules.  The language of the arbitration shall be in English. The place of the arbitration shall be at a mutually agreed location.  This License Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  Either party shall, at the request of the other, make available documents or witnesses relevant to the major aspects of the dispute.

 

This License Agreement constitutes the sole and entire License Agreement of the parties as to the subject matter set forth herein and supersedes any previous License Agreements, understandings, and arrangements between the parties relating to such subject matter, and any terms on Licensee's purchase orders.  Any modification(s) or amendment(s) to this License Agreement must be in writing and signed by an authorized representative of each party.