SmarterStats distribution permissions and end-user license agreement

SmarterTools Inc.(tm) End User License Agreement

1. License

In this license agreement ("License Agreement"), you, the purchaser of the license rights granted by this Agreement, are referred to as "Licensee" or "You." In accordance with the terms and conditions of this License Agreement, SmarterTools Inc. (tm) ("Licensor") grants Licensee the non-exclusive license to use the accompanying software ("Software") and documentation ("Documentation"). In this license Agreement, the Software and Documentation and any copies or modifications are referred to as the "Licensed Product."

All rights to and in the Licensed Product, including, but not limited to, copyrights and trade secret rights, belong to Licensor and Licensor holds title to each copy of the Software. Licensee shall not transfer or distribute the Licensed Product to others, and this Agreement shall automatically terminate in the event of such a transfer or distribution. Licensee shall not copy or modify the Licensed Product, except that Licensee may copy the Software for the sole purpose of backup as long as all copyright and other notices are reproduced and included on the backup copy.

2. Term

This License Agreement is effective until terminated. Licensee may terminate this License Agreement by returning the Licensed Product to Licensor. Licensor may terminate this License Agreement if Licensee breaches any of the terms and conditions. Upon termination of this License Agreement for any reason, Licensee shall return the Licensed Product to Licensor. All provisions of this Agreement relating to disclaimers of warranties, limitation of liability, remedies, or damages, and Licensor`s proprietary rights shall survive termination.

3. Object Code

The Software is delivered in object code only. Licensee shall not reverse compile or otherwise reverse engineer the Software.

4. Limited Warranty

Licensor does not warrant that the functions contained in the Licensed Product will meet Licensee`s requirements or that the operation of the Software will be uninterrupted or error-free. Licensor does warrant that the media on which the Software is furnished will be free from defects in materials and workmanship under normal use for a period of thirty (30) days from the date of delivery ("Warranty Period"). Any other software and any hardware furnished with or accompanying the Software is not warranted by Licensor. Licensee`s exclusive remedy under this limited warranty is the replacement of any defective physical media on which the Software is furnished, as provided below. To receive a replacement for defective media under this limited warranty, return the defective media to Supplier during the Warranty Period, with proof of payment.

EXCEPT AS PROVIDED ABOVE, THE LICENSED PRODUCT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED PRODUCT IS WITH LICENSEE. SmarterStats™ keeps most data from log files in a proprietary, compressed format. This allows SmarterStats™ to recreate web server log files, in any format, within 98% of their original form. However, in order to have perfect copies of your original log files, you must maintain backups of the original log files. As a statistics package, and not a log management package, SmarterTools Inc.(tm) cannot be held responsible for any data loss that occurs because of failure to back up files.

5. Limitation Of Liability

LICENSOR`S SOLE OBLIGATION OR LIABILITY UNDER THIS AGREEMENT IS THE REPLACEMENT OF DEFECTIVE MEDIA ACCORDING TO THE LIMITED WARRANTY ABOVE. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OR LOSS OF PROFITS OR LOST SAVINGS, ARISING OUT OF USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION (OR ANY HARDWARE FURNISHED WITH THE SOFTWARE), EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DAMAGES.

6. General

Any attempt to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void, unless Licensee has been given “Reseller” status by Licensor. This Agreement shall be governed by and interpreted under the laws of the State of Arizona, United States of America, without regard to conflicts of provisions. In the case of the United States Government or an agency thereof as Licensee, the following additional terms apply: Restricted Computer Software, as defined in the Rights in Data-General clause at Federal Acquisition Regulations 52.227-14; and as applicable,

RESTRICTED RIGHTS LEGEND

Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013.

7. Payment

Licensee shall pay the Total Fee in accordance with the terms of payment set forth by Licensor. Licensee shall pay all invoices rendered by Licensor within thirty (30) calendar days after the invoice date, or within a time frame agreed upon by Licensor. All payments shall be made in United States Dollars. If Licensee fails to pay any amount due within thirty (30) days from the invoice date, Licensee shall be responsible to pay to Licensor late charges equal to the lesser of 1.5% per month or the highest interest rate allowable by applicable law, together with all expenses and collection costs, including reasonable attorneys` fees, incurred by Licensor in enforcing the Agreement. Licensee shall reimburse Licensor for any out-of-pocket expenses incurred in connection with duties performed by Licensor hereunder. Upon request, Licensor shall provide Licensee with reasonable documentation evidencing the out-of-pocket expenses incurred by Licensor.

8. Additional License Options

Licensee shall have the right, at any time, to add additional Licensed Branches or computer systems to be covered under this Agreement subject to the following:

(i) Licensee shall pay the Multi Branch License Fee set forth by Licensor for each additional Licensed Branch whose transactions will be processed by the Computer System identified by Licensee. Licensee shall complete and forward to Licensor, with the applicable license fees, a copy of all additional Computer Systmes using the licensed product.

(ii) In the event that the Licensed Software will be utilized by any Licensed Branch on a separate computer system (each an additional "Computer System"), Licensee shall pay the applicable Additional Computer System License Fee for the Licensed Software for each such additional Computer System.

(iii) Licensee shall pay Licensor`s then applicable fees for Support.

9. Privacy and Security

SmarterTools Inc.(tm) shall not sell, or offer, any Licensee information to any outside agency our business without the express consent of Licensee.

Licensee authorizes SmarterTools Inc.(tm) to communicate with the Web Interface the Licensee installs for license verification and billing purposes. The communication will occur from SmarterTools Inc.(tm) via port 80 to each Web Interface the Licensee has, and/or will, install. This communication will occur in 24 hour intervals. Licensee consents to this communication and realizes that if this communication is blocked, for any reason, either with or without the knowledge of the Licensee, SmarterStats(tm) Network Edition will cease running on Licensee`s systems and that SmarterStats(tm) Network Edition will not resume functioning until the Web Interface is able to communicate with SmarterTools Inc.(tm).

10. Initial Licensing of SmarterStats(tm)

Upon initial download and installation of SmarterStats(tm), the licensee is granted a limited license to use SmarterStats(tm) for a single web site and a single server for an unlimited amount of time. If licensee so desires they may purchase a license to a version of SmarterStats(tm), either Professional or Enterprise, that best suits their needs at the time.

11. Requirements When Implementing Custom Skins or Styles to SmarterStats(tm)

Should licensee make use of the custom style and/or skin options included in all installations of SmarterStats(tm), the following requirements must be met:
a) The SmarterStats(tm) name must remain in the header information that displays upon opening and using SmarterStats(tm) with all applicable trademark and copyright notices. The name may be displayed without any font restrictions, but it will be displayed no smaller than 14 point. Also, the SmarterStats(tm) name will remain visible to the naked eye, free from any clutter or similar color scheme (e.g. 14 point black font on a black or similar background that would preclude the user from identifying the product as SmarterStats(tm)). The usage of some form of quantifier, such as "powered by" is allowed. Major deviations from this theme must meet the approval of SmarterTools Inc.
b) The original copyright notices pertaining to the developer of SmarterStats(tm) (SmarterTools Inc) as well as all applicable copyright information will remain visible to the naked eye, free from any clutter or similar color scheme, and can be displayed in any font type and/or style no smaller than 8 point.
c) SmarterTools Inc reserves the right to contact the licensee and restrict the usage of SmarterStats(tm) if any authorized SmarterTools Inc representative feels that any of the above requirements are not being met.

SmarterTools Inc., is the sole owner of SmarterStats web analytics software and is the sole Distributors of SmarterStats.

No output or portion of output from SmarterStats may be posted or distributed via any web site,
online service or BBS, or included on any CD or with any other software media without explicit
written permission from SmarterTools Inc.

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