INSMARK® SYSTEM(S) LICENSE/SUBLICENSE AGREEMENT (Single User License)
IMPORTANT, PLEASE READ CAREFULLY: THIS LICENSE/SUBLICENSE AGREEMENT APPLIES TO ANY OF THE FOLLOWING SYSTEMS YOU ARE LICENSED FOR:
WEALTHY AND WISE® (Previously InsGift)
INSMARK® ILLUSTRATION SYSTEM
INSMARK® LEVERAGED COMPENSATION SYSTEM
INSMARK® LOAN-BASED SPLIT DOLLAR SYSTEM
INSMARK® PREMIUM FINANCING SYSTEM
LIFE PLAN SYSTEM
EACH OF THE SYSTEMS LISTED ABOVE IS A PROPRIETARY COMPUTER PROGRAM, WHICH INCLUDES WEB DOWNLOADS, UPDATES, ENHANCEMENTS, DISKS, BACK-UP DISKS NOW OR HEREAFTER PROVIDED, (THE "SYSTEM(S)") AND MANUALS AND OTHER WRITTEN MATERIAL RELATING TO THE SYSTEM(S) ("SUPPORT DOCUMENTATION"). All SYSTEM(S) ARE SUBJECT TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. BY INSTALLING, COPYING, OR OTHERWISE USING THE SYSTEM(S) OR SUPPORT DOCUMENTATION, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU SHOULD PROMPTLY AND WITHOUT USING, COPYING, OR INSTALLING, RETURN THE PRODUCT SUITE CD AND ANY SUPPORT DOCUMENTATION TO INSMARK OR YOUR HOME OFFICE IF YOU ARE SUBLICENSING.
LICENSE: InsMark, Inc. ("InsMark") or your Home Office (the "Company") grants you a non-exclusive and non-transferable license/sublicense ("License") to use the System(s) and Support Documentation in the United States and Puerto Rico. If the System(s) are permanently installed on the hard disk or other storage device of your computer and you use that computer more than 80% of the time it is in use, then you may also use the System(s) on a portable or home computer. An Agency User License is available from InsMark that allows multiple installations of the same System. Contact InsMark at 1-888-InsMark (467-6275) for information about this option.
PROPRIETARY RIGHTS: You have been provided with insurance proposal disks bearing a special Sequential File programmed to InsMark's specifications ("Sequential File"). You agree that all techniques, algorithms and processes contained in the System(s) and Support Documentation and Sequential File, or any modification thereof in the future, constitute trade secrets of their owner, InsMark. You will not copy, reproduce, remanufacture, make available, or in any way re-use or duplicate or distribute all or any part of the System(s) and Support Documentation or the Sequential File except as permitted in the Support Documentation. You will not remove any logo, product name, or copyright or trademark notice from the System(s), the Support Documentation, or from any sales material and/or output from the System(s).
NO USE BY OTHERS: You may not transfer possession of the System(s) and Support Documentation, or any copy, to another party, or permit its use by anyone other than yourself, or this License is automatically terminated. Output from the System(s) may only be provided to prospective customers or their advisers. Output may not be provided to other financial professionals for their use with their customers or potential customers. You agree not to make any part of the System(s) available to other persons or entities offering or contemplating offering programs, systems, or marketing materials similar to any System(s) or components thereof.
NETWORK USAGE: InsMark hereby grants you a limited License to install the System(s) on a computer network file server. If you wish to do so, please contact InsMark for instructions. Under this License Agreement you are permitted to use the System(s) on one workstation connected to the network where the System(s) are installed. If you wish to use the System(s) on additional workstations, you must purchase additional licenses from InsMark.
LIMITATIONS: YOU ASSUME RESPONSIBILITY FOR THE SELECTION IN THE SYSTEM(S) AND SUPPORT DOCUMENTATION TO ACHIEVE YOUR INTENDED RESULTS. INSMARK MAKES NO REPRESENTATION OR WARRANTY THAT ANY OF THE SYSTEM(S) AND SUPPORT DOCUMENTATION WILL COMPLY WITH ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, RULE, REGULATION OR ORDINANCE INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO INSURANCE PROPOSALS, PRESENTATIONS, ADVERTISEMENTS OR PROMOTIONS. LIMITATIONS OF WARRANTY: ALL SYSTEM(S) ARE 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 EXCEPT AS SPECIFICALLY SET FORTH IN THE SUPPORT DOCUMENTATION. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SUPPORT DOCUMENTATION IS WITH YOU. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR REMEDIES, SO THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. LIMITATIONS OF REMEDIES: INSMARK'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE: 1. THE REPLACEMENT OF ANY SYSTEM(S) NOT MEETING INSMARK'S "LIMITED WARRANTY", OR 2. THE REFUND OF YOUR MONEY IF INSMARK IS UNABLE TO DELIVER REPLACEMENT SYSTEM(S) FREE OF DEFECTS IN MATERIALS OR WORKMANSHIP. INSMARK SHALL NOT BE RESPONSIBLE FOR ANY CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO USE OF THE SYSTEM(S) OR SUPPORT DOCUMENTATION. IN NO EVENT WILL INSMARK BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SYSTEM(S) OR SUPPORT DOCUMENTATION EVEN IF INSMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
FEES: You shall pay to InsMark or the Company, depending upon the terms of the arrangement, a one-time upfront fee and a mandatory monthly maintenance fee for any System(s) in an amount set in writing from time to time by InsMark. These fees are to be paid by check or electronic debit. A $25 processing fee will be charged for any and all returned checks or electronic debits. A $25 processing fee will also be charged for any invalid, reversed or disputed authorized credit card charges. This maintenance fee will entitle you to receive System(s) updates and enhancements. If you cease to pay this monthly fee, your License shall terminate according to the terms of the following Termination paragraph.
TERMINATION: This License is effective until terminated. You or InsMark may terminate its obligations hereunder by written notice to the other party. If you breach any provision of this License, InsMark may immediately terminate the License granted hereunder, without prior notice, and render the System(s) inoperable. Upon termination, you must destroy the System(s) and Support Documentation. All the provisions of this License that operate to protect the rights of InsMark or the Company shall continue in force after termination.
REMEDIES: Any dispute over performance under the terms of this Agreement shall be resolved by arbitration conducted in San Francisco, California. The dispute will be settled by a neutral arbitrator chosen under, and governed by, the California Code of Civil Procedure, Sections 1280 et seq. Three arbitrators will be appointed as the commercial arbitration Tribunal if a disclosed claim or counter claim exceeds $100,000. A single arbitrator will be appointed if there is no disclosed claim or counter claim in excess of $100,000. The commercial arbitration Tribunal will issue supporting finds of fact and conclusion of law with any award issued. The determination of the commercial arbitration Tribunal will be final and binding upon the parties to the arbitration, and judgment upon the award rendered by the commercial arbitration Tribunal may be entered in any court of competent jurisdiction. Each party shall pay its own attorney fees and expenses with any arbitration. All other costs of arbitration shall be borne by the party deemed to be the losing party by the arbitrator or Tribunal. Notwithstanding the foregoing, any party may seek injunctive relief with respect to any controversy or claim arising out of or relating to any provisions of this Agreement in a court of competent jurisdiction.
UNENFORCEABLE PROVISIONS: Should any provision(s) of this Agreement be unenforceable, such provision(s) shall be deemed omitted, and this Agreement, with such provision(s) omitted, shall remain in full force and effect.
ENTIRE AGREEMENT: This document contains the complete and exclusive Agreement between the parties, and it is intended to be a final expression of their Agreement. No promise, representation, warranty or covenant not included in this document has been or is relied upon by any party. Each party has relied upon its own examination of the full Agreement and the provisions thereof and the counsel of its own advisors, and the warranties, representations and covenants expressly contained in the Agreement itself. No modification or amendment of this Agreement shall be of any force or effect unless in writing executed by all parties hereto.
USE AND AVAILABILITY OF OPEN SOURCE CODE: Portions of the System(s) were created using source code governed by the Mozilla Public License ("MPL"). The source code governed by MPL is available from sourceforge.net.
(c)Copyright 1992-2011, InsMark, Inc. All Rights Reserved
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