End User License Agreement

END USER LICENSE AGREEMENT

By clicking the "YES" button or otherwise signifying agreement in the manner indicated in this display window, you are agreeing to be bound by the following terms and conditions of use of this Software program and to abide by the constraints and requirements of this License Agreement. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "NO" BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE. IF YOU DO NOT AGREE TO BE SO BOUND, PROMPTLY DELETE THE SOFTWARE PROGRAM AND ALL ACCOMPANYING MATERIALS. USING ANY PART OF THE SOFTWARE INDICATES THAT YOU ACCEPT THESE TERMS.

This End User License Agreement (as amended from time to time, the "License Agreement") is a legal agreement between you ("End User") (either an individual or an entity) and DeskMasters, Inc. ("Licensor") regarding the use of that certain software program and related documentation being installed by End User from the www.thejobdesk.com website (the "Software").

1. License Grant and Restrictions. Licensor grants End User a personal, non-exclusive, non-sublicensable, non-transferable, revocable license to download and use one (1) copy of the Software (in object code form only) only on End User's personal computer as a single user solely for End User's personal, non-commercial use. If Licensor provides End User with any updates to the Software, End User's use of such updates will be governed by the terms and conditions of this Agreement or other agreement that is applied to such updates. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All ownership rights in the Software, including any related documentation and any new releases, modifications, and enhancements thereto belong solely to Licensor and its licensors if any, including all intellectual property rights therein. The Software is licensed, not sold. Title does not pass to End User. There is no implied license, right or interest granted in any copyright, patent, trade secret, trademark, invention or other intellectual property right.
2. Additional Restrictions. End User shall not (i) copy, modify, adapt, translate into any language, distribute, or create derivative works based on the Software; (ii) sublicense, sublease, lease, lend, assign, sell, resell, license, re-license, distribute, rent, export, re-export, permit concurrent use of or grant other rights in the Software and any attempt by End User to take such action shall be void; (iii) decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software by any means whatsoever; (iv) remove or alter any copyright and/or other proprietary notices contained on or in the Software; (v) use the Software for unlawful purposes, including to create or proliferate a virus or to circumvent any copy protection or other digital rights management mechanism, or to facilitate such unlawful purposes. End User further represents that End User shall not (i) use the Software for any illegal or unauthorized purpose, (ii) transmit worms, viruses or any code of a destructive nature, and (iii) shall not attempt to hack, destabilize or adapt the Licensor website or the Software, or alter another website so as to falsely imply that it is affiliated with Licensor.
3. Indemnification and Release by End User. END USER AGREES TO (I) RELEASE AND DISCHARGE, (II) INDEMNIFY, DEFEND AND HOLD HARMLESS, LICENSOR, ITS LICENSORS, ITS PARTNERS, AND THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND SUPPLIERS (INCLUDING LICENSOR, THE "LICENSOR PARTIES"), FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, LIABILITY, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES INCURRED BY SUCH PARTIES, IN CONNECTION WITH OR ARISING OUT OF END USER'S (A) VIOLATION OR BREACH OF ANY TERM OF THIS LICENSE AGREEMENT OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN, (B) VIOLATION OF ANY RIGHTS OF ANY THIRD PARTY, (C) ANY CONTENT (AS DEFINED BELOW) OR OTHER COMMUNICATION SPREAD BY MEANS OF THE SOFTWARE, OR (D) USE OR MISUSE OF THE SOFTWARE AND/OR THE LICENSOR WEBSITE. If End User is a California resident, End User waives End User's rights under California Civil Code Section 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states and nations waive their rights under all analogous laws, statutes or regulations.
4. Assignment. End User is not allowed to assign this License Agreement or any rights hereunder. Licensor is allowed at its sole discretion to assign this License Agreement and any rights hereunder to any third party, without giving prior notice.
5. Termination and Modification. Upon any violation of any of the provisions of this License Agreement, End User's rights to use the Software shall automatically terminate and End User shall be obligated to uninstall and destroy all copies of the Software. End User may terminate this License Agreement at any time by uninstalling and destroying the Software. Without limiting other remedies, Licensor may limit, suspend, or terminate this license and End User's use of the Software, with immediate effect, automatically and without recourse to the courts, for any reason or for no reason. In addition to the foregoing, Licensor may at any time and from time to time to modify or discontinue, temporarily or permanently, all or any part of the Software with or without notice. End User agrees that neither Licensor nor any other Licensor Party shall be liable to End User or to any third party for any modification, suspension or discontinuance of the Software.
6. No Warranty. The Software and any services performed or provided by the Software are being provided to End User "AS IS" and "AS AVAILABLE" with no warranties. TO THE FULL EXTENT ALLOWED BY LAW, THE LICENSOR PARTIES DISCLAIM ALL WARRANTIES, TERMS, OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, CORRESPONDENCE WITH DESCRIPTION, TITLE, NON-INFRINGEMENT, AND ACCURACY AND INACCURACIES OF INFORMATION GENERATED. ACCORDINGLY, END USER ACKNOWLEDGES AND AGREES THAT LICENSOR, ITS AFFILIATES AND ITS LICENSORS WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM END USER'S USE OF THE SOFTWARE. END USER'S ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SOFTWARE IS TO IMMEDIATELY UNINSTALL AND CEASE USE OF THE SOFTWARE.
7. LIMITATION OF LIABILITY. TO THE FULL EXTENT ALLOWED BY LAW, THE LICENSOR PARTIES DISCLAIM ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR ANY LOSSES, LIABILITIES, CLAIMS OR DAMAGES OF ANY KIND, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, OR ANY OTHER DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THIS LICENSE AGREEMENT OR THE PERFORMANCE, SUSPENSION, TERMINATION OR BREACH HEREOF, EVEN IF LICENSOR OR ANY OTHER LICENSOR PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE MAXIMUM LIABILITY OF THE LICENSOR PARTIES TO END USER FOR DAMAGES SHALL NOT EXCEED THE LICENSE FEE PAID BY DIRECTLY END USER TO LICENSOR FOR THE SOFTWARE LICENSED HEREUNDER, IF ANY. THESE DISCLAIMERS OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE. As some jurisdictions do not allow some of the exclusions or limitations set forth above, some of these exclusions or limitations may not apply to End User. In such event the liability will be limited to the maximum extent possible under applicable law.
8. Risk of Use. End User specifically acknowledges and agrees that (i) none of the Licensor Parties shall be liable for the conduct of any third party, and (ii) the entire risk arising out of the foregoing, and out of End User's use of the Software, remains solely with End User, to the maximum extent permitted by law.
9. Feedback. Any comments, suggestions, or feedback relating to the Licensor website or the Software (collectively, "Feedback") submitted to Licensor shall become the property of Licensor. Licensor will not be required to treat any Feedback as confidential and without limitation, will have exclusive ownership of all present and future existing rights to the Feedback of every kind and nature everywhere. Licensor will be entitled to use the Feedback for any commercial or other purpose whatsoever, without compensation to End User or any other person sending the Feedback. Further, End User agrees that End User does not acquire any right in or to the Licensor website or the Software (or any changes, modifications or corrections thereto) by virtue of any Feedback. End User acknowledges that End User is responsible for whatever material is submitted by End User, and End User has full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.
10. Rules for Posting. In connection with the permitted use of the Software, Licensor allows End User to post certain content within the Licensor website and on bulletin boards, contact forms, and at various other publicly available locations (collectively, "Content"). End User hereby agrees and acknowledges that: (i) End User is solely responsible for all content submitted by or on behalf of End User; (ii) by submitting content, End User represents that End User has all necessary rights to such content, and hereby grants to Licensor a perpetual, irrevocable, worldwide, non-exclusive, fully paid-up, sub-licenseable and transferable license to use, reproduce, distribute (through multiple tiers of distribution), prepare derivative works of, modify, display, and perform all or any portion of the content in any media formats and through any media channels; (iii) End User shall not post or transmit any message, data, image or program (1) for any commercial purpose, (2) which is libelous or defamatory, (3) which discloses private or personal matters concerning any person, (4) which is indecent, obscene, pornographic, harassing, threatening, abusive, hateful, racially or ethnically offensive, encourages conduct that would be considered a criminal offense, gives rise to civil liability or violate any law, or that is otherwise inappropriate, or (5) which would violate the property rights of others; (iv) End User shall not directly or indirectly interfere with other end users' use or availability of the Software and the Licensor website to other end users; (v) End User shall not post or transmit any advertising, promotional materials or any other solicitation of other end users; (vi) that any employment or other relationship End User forms or attempts to form with an employer, employee, or contractor is solely between End User and that employer, employee, or contractor alone, and not with Licensor; (vii) End User shall not copy or use personal identifying or business contact information about other end users without their express written permission, and (viii) End User shall not engage in the creation and/or delivery of any unsolicited e-mails, mailings, telephone calls, or other communications to individuals or companies through the Software or the Licensor website.
11. Export. The Software may only be operated, exported or re-exported in compliance with all applicable laws and export regulations of the United States and the country in which End User obtained them. The Software is specifically subject to the U.S. Export Administration Regulations; diversion contrary to United States law is prohibited. End User may not export, directly or indirectly, the Software or technical data licensed hereunder or the direct product thereof to any country, individual or entity for which the United States Government or any agency thereof, at the time of export, requires an export license or other government approval, without first obtaining such license or approval.
12. U.S. Government Rights. All Software and technical data are commercial in nature and developed solely at private expense. The software program and documentation are deemed to be "commercial computer software" and "commercial computer software documentation", respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the software program and/or documentation by the U.S. Government or any of its agencies shall be governed solely by the terms of this License Agreement and shall be prohibited except to the extent expressly permitted by the terms of this License Agreement. Any technical data provided that is not covered by the above provisions is deemed to be "technical data­commercial items" pursuant to DFAR Section 227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR Section 227.7015(b).
13. GENERAL.
    1. European Union. By using the Software, End Users in the European Union understand and consent to the processing of personal information in the United States.
    2. Ability to Contract. End User hereby affirms that End User is fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this License Agreement, and to abide by and comply with the terms and conditions of this License Agreement.
    3. Entire Agreement. This License Agreement represents the complete agreement concerning the matters covered and may be amended only by Licensor. If any provision of this License Agreement is held to be unenforceable, such provision shall be modified only to the extent necessary to make it enforceable.
    4. Amendments. Licensor reserves the right to amend this License Agreement at any time by publishing the revised License Agreement on the Licensor website. The revised License Agreement shall become effective within ten (10) days of such publication, unless End User expressly accepts the revised License Agreement earlier by clicking on the accept button. End User's express acceptance or continued use of the Software after expiry of the notice period of ten (10) days shall constitute End User's acceptance to be bound by the terms and conditions of the revised License Agreement. End User can find the latest version of this License Agreement at www.thejobdesk.com/legal/eula.html.
    5. Governing Law and Venue. THIS LICENSE AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA AS SUCH LAWS ARE APPLIED TO AGREEMENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN CALIFORNIA BETWEEN CALIFORNIA RESIDENTS, AND BY THE LAWS OF THE UNITED STATES. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this License Agreement. The Superior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have exclusive jurisdiction and venue over all controversies in connection herewith.