BrandMuscle End User License Agreement

IMPORTANT: READ THIS CAREFULLY.  This End User License ("End User License") is a legal agreement between you and BrandMuscle, Inc. ("BrandMuscle") granting you certain rights to access and use certain modules ("Modules") of BrandMuscle's software products (the "Software"), together with any user manuals and on-line help function therefore, as BrandMuscle may update them from time to time ("Documentation").  By clicking on the "Accept" button or otherwise accessing or using the Software or any Module, you agree to be bound by the terms of this End User License.  If you do not agree to the terms of this End User License, click on the "Cancel" button and do not access or otherwise use the Software or any Module.

1. Authorized User. This End User License is granted by BrandMuscle under and subject to a Master Agreement (the "Agreement") between BrandMuscle and your employer or other legal entity which is licensing access and use of the Software and instructing you to access or use the Software ("Licensee").  You are eligible for the rights granted by this End User License only if you are an Authorized User under the terms of the Agreement, meaning you are an employee of Licensee, a wholly-owned subsidiary of Licensee, or an independent contractor under license to Licensee, such as, e.g., an advertising agency, and who (a) has a need to access a Module of the Software, and (b) has agreed to the terms of this End User License, as modified by BrandMuscle from time to time.

2. License Grant. Subject to the terms of this End User License, the Agreement, and any reasonable policies and procedures agreed upon in writing between Licensee and BrandMuscle, you may (A) access and use Modules of the Software as set forth in the Agreement, and (B) use the Documentation.  This grant is non-transferable and non-exclusive.

3. License Restrictions.  You may not do any of the following yourself, or through any other person:

A)  Copy, modify or create derivative works based upon the Modules, the Software or Documentation;

B)  Decompile, disassemble, or reverse engineer the Modules or the Software in whole or in part;

C)  Defeat, disable or circumvent any protection mechanism related to the Modules, the Software or Documentation, including without limitation any code which necessitates or solicits agreement to the End User License before use of any Modules;

D)  Sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party any portion of the Modules, the Software or the Documentation to any third party other than an Authorized User under the Agreement, or, in particular, without limiting the generality of the foregoing, allow any party to use the Modules or the Software in order to provide services outside the scope of the Agreement; or

E)  Export any Module or the Software in violation of any laws or regulations, including U.S. Department of Commerce Export Administration regulations.

4. Title and Ownership. Except for the rights expressly granted above, this End User License transfers to you no right, title, or interest in any Module, the Software, the Documentation, or any copyright, patent, trademark, trade secret or other intellectual property or proprietary right in the Module, the Software or the Documentation. BrandMuscle retains sole and exclusive title to all portions of all Modules, the Software and Documentation and any copies thereof.  You agree not to disclose any Module or the Software or the Documentation to anyone other than Authorized Users as defined in the Agreement.  The Modules, the Software and the Documentation contain valuable proprietary information the unauthorized use or disclosure of which would irreparably harm BrandMuscle.  Upon learning of any unauthorized possession or use of or access to any Module or the Software, you will notify BrandMuscle immediately, will promptly furnish details of such occurrence, will assist in preventing any recurrence thereof, and will cooperate fully in any litigation or other proceedings undertaken to protect the rights of BrandMuscle.

5. Warranty.  BRANDMUSCLE PROVIDES VARIOUS LIMITED WARRANTIES TO LICENSEE IN THE AGREEMENT.  BRANDMUSCLE MAKES NO WARRANTY OF ANY KIND TO YOU, THE END USER. BRANDMUSCLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BRANDMUSCLE SHALL NOT BE LIABLE TO YOU, THE END USER, FOR ANY DAMAGES OF ANY KIND, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOSS OF USE, COST OF COVER, OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

BRANDMUSCLE MAKES EVERY EFFORT TO ENSURE QUALITY AND RELIABILITY. HOWEVER, BRANDMUSCLE DOES NOT MAKE ANY REPRESENTATION THAT DOWNLOADING ANY FILES FROM THIS SITE WILL NOT CAUSE INTERRUPTIONS TO THE USER'S SYSTEM NOR THAT SUCH DOWNLOADED FILES WILL BE ERROR-FREE. EACH USER AGREES TO PERFORM USER'S OWN VERIFICATION OF THE FILES (E.G. SCAN FILES FOR VIRUSES) AND EACH USER AGREES TO DOWNLOAD SUCH FILES AT USER'S OWN RISK. BRANDMUSCLE SHALL NOT BE LIABLE FOR ERRORS, OMISSIONS, INTERRUPTIONS, DELETIONS, DEFECTS, OR FAILURES OF PERFORMANCE, COMPUTER VIRUS OR COMMUNICATION LINE FAILURES, REGARDLESS OF CAUSE, OR FOR ANY DAMAGES RESULTING THEREFROM. USER AGREES TO USE THE MATERIALS FOR LEGITIMATE PURPOSES AS DIRECTED BY LICENSEE, ITS USERS, OR ADVERTISING AGENCIES.

6. Confidentiality.  The terms and conditions of this End User License, the Agreement, and any other information designated by either BrandMuscle or Licensee as "confidential" are confidential and shall not be disclosed by you, orally or in writing, to any third party without the prior written consent of BrandMuscle and Licensee.  All Modules, the Software and Documentation are confidential, and you shall protect them and BrandMuscle's other confidential information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which you utilize for your own confidential information. 

7. Termination.  This End User License shall terminate as set forth in the Agreement which authorizes your use of the Software, unless earlier terminated by BrandMuscle A) upon notice to you, or B) without notice, upon a breach by you of any provision of this End User License.

8. Miscellaneous Terms.  This End User License shall be governed by the laws of the State of Ohio, without regard to its choice of law principles. Except as provided in the Agreement, venue of any dispute related to this End User License or any Module or the Software shall rest exclusively in the state or federal courts located in Cleveland, Ohio.  All disputes shall be resolved in accordance with the provisions of the Agreement.  If any provision of this End User License is held to be unenforceable, this End User License shall be construed without such provision. The failure of BrandMuscle to exercise any of its rights shall not operate as a waiver of its right to exercise such right or any other right in the future.

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