END USER LICENSE AGREEMENT
BY CLICKING ACCEPT OR INSTALLING THE SOFTWARE, YOU ARE AGREEING TO ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. LICENSOR IS WILLING TO MAKE THE SOFTWARE AVAILABLE TO LICENSEE ONLY UPON THE CONDITION THAT LICENSEE ACCEPTS THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK CANCEL AND THE INSTALLATION PROCESS WILL NOT CONTINUE.
This End User License Agreement (“Agreement”) is between Licensee (either an individual or entity) (“Licensee”) and Licensor. “Licensor” means Axcient. This Agreement applies to the object code copy of the Axcient Software which Licensee has elected to install, together with any related documentation provided by Licensor (“Documentation”). The Software and Documentation are referred to collectively herein as “Software.”
1. GRANT OF LICENSE. Subject to the terms of this Agreement, Licensor grants Licensee a non-exclusive and non-transferable right to use, solely for Licensee’s internal personal or business purposes, the Software. Licensee may make and install more than one copy of the Software for Licensee’s personal or business purposes, including one archival or back-up copy. All copies of the Software must contain all proprietary rights notices as are contained in the master copy, and all copies are subject to the terms and conditions contained in this Agreement.
2. RESTRICTIONS. Unless otherwise specified in the Grant of License (Section 1), Licensee may not copy the Software. To the extent copying is permitted, Licensee must include the copyright notice and any other notices that appear on the original Software on any copies and any media created therefrom. Licensee shall not (and shall not allow any third party to) (i) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except solely to the extent that applicable law prohibits reverse engineering restrictions), (ii) remove any product identification, proprietary, copyright or other notices, (iii) sell, distribute or otherwise provide, lease, lend, grant a security interest in or transfer or use, or allow others to transfer or use, the Software to or for the benefit of third parties, (iv) modify, translate, incorporate into or with other software or create a derivative work of any part of the Software, or (v) allow the Software to be used in the creation of computer software.
Licensee acknowledges that the Software is not intended for use in connection with any high risk or strict liability activity (including, without limitation, air travel, space travel, power plant operation, or life support or emergency medical operations) and that Licensor makes no warranty and shall have no liability in connection with any use of the Software in such situations.
3. TITLE. Notwithstanding anything to the contrary herein, Licensor and its suppliers retain all title to, and, except as expressly and unambiguously licensed herein, all rights to the Software, all copies and derivative works thereof (by whomever produced) and all related documentation and materials.
4. TERMINATION. The Agreement may be terminated at Licensor’s option upon written notice if Licensee materially breaches this Agreement. Upon termination, Licensee shall immediately cease all use of the Software and return or destroy all copies of the Software and all portions thereof and so certify to Licensor upon Licensor request. Except for the Grant of License (Section 1) and except as otherwise expressly provided herein, the terms of this Agreement, which by their nature, should remain in effect beyond the Term of this License shall survive termination. Termination is not an exclusive remedy and all other remedies (including, without limitation, equitable relief) will be available whether or not the Agreement is terminated.
5. COPYRIGHT. The Software is owned by Licensor or its suppliers and is protected by copyright laws and international treaty provisions.
6. WARRANTY DISCLAIMER.
(a) LICENSEE ACKNOWLEDGES THAT THE SOFTWARE MAY CONTAIN BUGS, ERRORS OR OTHER PROBLEMS. THE SOFTWARE AND THIRD-PARTY PRODUCTS WHICH ARE SUPPLIED WITH THE SOFTWARE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND. NEITHER LICENSOR NOR ANY SUPPLIER OF LICENSOR MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF OR RELATING TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTIES’ RIGHTS. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS. NO DEALER, AGENT, OR EMPLOYEE OF LICENSOR IS AUTHORIZED TO MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SOFTWARE.
(b) LICENSEE’S USE OF THE SOFTWARE IS AT LICENSEE’S OWN RISK. NEITHER LICENSOR NOR ANY SUPPLIER OF LICENSOR SHALL HAVE ANY LIABILITY RESULTING FROM LICENSEE’S DOWNLOADING OR USE OF THE SOFTWARE AND/OR WITH RESPECT TO ANY DATA ARCHIVED OR BACKED UP WITH USE OF THE SOFTWARE. LICENSEE IS SOLELY RESPONSIBLE FOR AND SHALL BEAR ALL RISK ASSOCIATED WITH USE OF THE SOFTWARE TO BACK UP DATA, INCLUDING, BUT NOT LIMITED TO LOSS OR CORRUPTION OF DATA OR ANY LACK OF SECURITY.
7. SUPPORT AND MAINTENANCE. Licensee is not entitled to any support or maintenance (including, without limitation, updates, upgrades, or enhancements of the Software) under this Agreement. At its sole discretion Licensor may provide updates to the Software.
8. CONFIDENTIALITY OF INFORMATION. “Confidential Information” means nonpublic information that Licensor designates as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential. As used herein Confidential Information shall include without limitation, the Software, its features, functionality, performance and any documentation, letters about the Software, its features, functionality or performance provided to Licensee by Licensor regarding the Software, whether received prior to or after the date of this Agreement. Licensee agrees that Licensee will not at any time, other than as requested by Licensor, disclose the Confidential Information to any person or entity without the prior written approval of Licensor, or use any Confidential Information for any purpose other than for the specific purpose set out in this Agreement in Section 1 above, unless specifically approved by Licensor in writing. Such approval shall be within Licensor’s sole and absolute discretion. Licensee shall maintain the confidential nature of the Confidential Information in Licensee’s possession by making best efforts to protect the Information from unauthorized use, access and disclosure. Licensee may not record, make notes of, copy or reproduce the Confidential Information by any means without the written permission of Licensor.
9. LIMITATION OF REMEDIES AND LIABILITY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER LICENSOR NOR ITS SUPPLIERS SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (INCLUDING, WITHOUT LIMITATION, FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS); (II) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (III) FOR ANY FAILURE OF THE SOFTWARE TO PROVIDE SECURITY, EVEN IF SUCH PARTY HAS BEEN MADE AWARE OF THE POSSIBILITY OF ANY OF THE FOREGOING DAMAGES. LICENSOR’S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID FOR THE SOFTWARE OR ONE UNITED STATES DOLLAR ($1.00). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO LICENSEE.
10. EXPORT COMPLIANCE. Licensee shall not, and shall not allow any third party to, remove or export from the United States or allow the export or re-export of any part of the Software: (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria, (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals or (iii) otherwise in violation of any restrictions, laws or regulations of any United States or foreign agency or authority. Licensee agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.
Licensee acknowledges software is classified by the U.S. government as a mass market encryption item (ECCN 5D992B.1) and is approved for export subject to License Exception ENC of the United States Export Administration Regulations (CCATS G051057). Licensee shall follow all laws and regulations of the United States and all foreign agencies and authorities and agrees that the Licensor is not liable for any violation.
11. GOVERNMENT END-USERS. As defined in Federal Acquisition Regulations (FAR) section 2.101 (or otherwise), the Software and accompanying documentation licensed in this Agreement are deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any modification, reproduction, release, performance, display, or disclosure of such commercial software of commercial software documentation by the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
12. GOVERNING LAW AND VENUE. If there is a local Axcient subsidiary in the country in which the Software was obtained, the local law of the subsidiary shall govern this Agreement (unless otherwise specified in the Country Specific Legal Terms Section). Otherwise, this Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of Georgia and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Unless waived in its sole discretion by Licensor, the sole jurisdiction and venue for actions related to the subject matter hereof shall be the Georgia state and federal courts having within their jurisdiction Cherokee County and both parties consent to the jurisdiction of such courts.
13. MISCELLANEOUS. Licensee acknowledges and agrees that Licensor shall have the right to directly enforce any and all provisions of this Agreement without respect to whether the Licensor as defined above is Axcient or another party. Neither this Agreement nor the License granted herein is assignable or transferable by Licensee without the prior written consent of Licensor, in Licensor’s sole and absolute discretion; any attempt to do so shall be void. Any amendment, waiver, notice, report, approval or consent required or permitted hereunder shall be made in advance in writing and signed by the applicable parties. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
14. QUESTIONS. If Licensee has any questions regarding this Agreement, write to:
707 17th St. Suite 3900
Denver, CO 80202
15. COUNTRY-SPECIFIC LEGAL TERMS. All Software downloaded, made available, or licensed outside the United States shall be licensed only in the country in which it was downloaded, made available or licensed (“Licensed Territory”). The following terms apply only to Software that are licensed for use in the referenced country, where the referenced country is also the Governing Law:
Australia. All references to Licensed Territory shall mean all States in Australia unless otherwise specified in the Order Document. All references to Governing Law shall mean the laws of the State of New South Wales, Australia, excluding the United Nations Convention for Contracts for the International Sale of Goods. All prices are exclusive of VAT, customs duties, sales and use taxes, and/or goods and services taxes which will be invoiced to Licensee separately. All references to “Sections” shall be changed to references to “Clauses”. All references to “attorney’s fees” shall be changed to references to “legal fees”. Except as specifically provided in Clause 6 (Warranty Disclaimer), Licensor makes no warranties either express or implied as to any matter whatsoever, including, without limitation, the condition of the Software, its merchantability, or its fitness for any particular use. This Agreement includes terms implied by any statute which cannot be lawfully excluded, including those implied by Division 2 of the Trade Practices Act and equivalent State and Territory legislation. However, in relation to the supply of goods or services which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, Licensor’s liability for breach of those terms (other than section 69 of the Trade Practices Act) will be limited, at its option, to any one or more of: (a) in the case of goods, the replacement, repair or payment of the cost of replacement or repair of the goods; and (b) in the case of services, resupplying the services or payment of the cost of having the services resupplied. Subject to the limitation in Clause 9, to the maximum extent allowable by law Licensor will not be liable to Licensee or any other party for monetary damages in excess of the amounts paid for the license or for any loss, direct or indirect, including good will and consequential, incidental and special damages, which may arise from the use, operation or modification of the Software or otherwise out of or in relation to this Agreement. Nothing in this Agreement is intended to prejudice, or have the effect of prejudicing, any rights Licensor may have under Australian law or of the States of Australia which cannot legally be excluded or restricted and the terms of this Agreement must be read accordingly.
Canada. All references to Licensed Territory shall mean all provinces in Canada unless otherwise specified in the Order Document. All references to Governing Law shall mean the laws of the Province of Ontario, excluding the United Nations Convention for Contracts for the International Sale of Goods. All prices are exclusive of VAT, customs duties, sales and use taxes, and/or goods and services taxes which will be invoiced to Licensee separately.
China, People’s Republic of. All references to Licensed Territory shall mean the People’s Republic of China unless otherwise specified in the Order Document. All references to Governing Law shall mean the laws of the People’s Republic of China, excluding the United Nations Convention for Contracts for the International Sale of Goods. All prices are exclusive of VAT, customs duties, sales and use taxes, and/or goods and services taxes which will be invoiced to Licensee separately. Licensee acknowledges and agrees that Licensee has not been induced to enter into this Agreement by any representations or warranties other than those contained in this Agreement and shall not claim any loss or damage resulting from any such representations or warranties made by Licensor before the signing of this Agreement against Licensor. All banking charges incurred in the People’s Republic of China shall be borne by Licensee and those incurred outside the People’s Republic of China shall be borne by Licensor.
Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”). All references to Licensed Territory shall mean Hong Kong unless otherwise specified in the Order Document. All references to Governing Law shall mean the laws of Hong Kong, excluding the United Nations Convention for Contracts for the International Sale of Goods. The terms and conditions of the Agreement may be amended or modified by Licensor from time to time by giving 30 days’ prior written notice to Licensee and all such amendments and modifications shall take effect and be binding on Licensee on the expiration of the said 30 days’ notice. Licensee acknowledges and agrees that Licensee has not been induced to enter into this Agreement by any representations or warranties other than those contained in this Agreement and therefore shall not claim any loss or damage resulting from any such representations or warranties made by Licensor before the signing of this Agreement against Licensor.
India. All references to Licensed Territory shall mean India unless otherwise specified in the Order Document. All references to Governing Law shall mean the laws of India, excluding the United Nations Convention for Contracts for the International Sale of Goods. All prices are exclusive of VAT, customs duties, sales and use taxes, and/or goods and services taxes which will be invoiced to Licensee separately.
Japan. All references to Licensed Territory shall mean Japan unless otherwise specified in the Order Document. All references to Governing Law shall mean the laws of Japan, excluding the United Nations Convention for Contracts for the International Sale of Goods. All prices are exclusive of consumption or similar assessments, taxes or duties which will be invoiced to Licensee separately. In addition to Licensor’s express disclaimers of liability in the Agreement, Licensor is not liable for damages arising through special circumstances. Section 10 (Export Compliance) is modified by adding the following: Licensee warrants that the Software shall not be used, exported or re-exported in violation of the Japanese Foreign Exchange and Foreign Trade Law, and its enforcement orders and regulations. Either party may terminate this Agreement immediately in the event of the other party’s insolvency. A party is deemed insolvent if: (i) it has ceased to pay a substantial portion of its debts in the ordinary course of business or cannot pay its debts as they become due, or in the event of a declaration of dishonor or suspension of checks, whether written, guaranteed, underwritten or endorsed, whether or not a petition for bankruptcy has been filed, and whether or not insolvent within the meaning of the Territory’s bankruptcy laws; (ii) there has been a petition filed to have a party declared bankrupt (hasan), to commence corporate reorganization (kaisha kosei), reorganization under the Commercial Code (seiri), composition (wagi), special liquidation (tokubetsu seisan); (iii) an interim receiver (hozen kanrinin) has been appointed for a party; (iv) voluntary arrangement (nin-ii-seiri) is commenced by a party; (v) it’s assets become subject to attachment, provisional attachment, provisional disposition, tax collection proceedings or any other administrative actions; or (vi) in the event of dissolution of a party. EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 6, LICENSOR MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE SOFTWARE, OR IMPLIED WARRANTY UNDER THE JAPANESE CIVIL CODE AND THE JAPANESE COMMERCIAL CODE (kashi-tampo-sekinin, etc.).
South Korea. All references to Licensed Territory shall mean South Korea unless otherwise specified in the Order Document. All references to Governing Law shall mean the laws of South Korea, excluding the United Nations Convention for Contracts for the International Sale of Goods. In addition to Licensor’s express disclaimers of liability in the Agreement, Licensor is not liable for damages arising through special circumstances.
Mexico. All references to Licensed Territory shall mean Mexico unless otherwise specified in the Order Document. All references to Governing Law shall mean the laws of Mexico, excluding the United Nations Convention for Contracts for the International Sale of Goods. All prices are exclusive of VAT, customs duties, sales and use taxes, and/or goods and services taxes which will be invoiced to Licensee separately. The limitation of liability in this Agreement will not apply to claims for death or personal injury, nor to physical damage to Licensee’s tangible property caused by gross negligence or willful misconduct on the part of Licensor.
Middle Eastern Countries. (Bahrain, Kuwait, Oman, Qatar, and UAE) This Agreement is governed by the law and jurisdiction of Bahrain, excluding the United Nations Convention for Contracts for the International Sale of Goods.
United Kingdom. All references to Licensed Territory shall mean the United Kingdom unless otherwise specified in the Order Document. All references to Governing Law shall mean English law, excluding the United Nations Convention for Contracts for the International Sale of Goods. All prices are exclusive of VAT, customs duties, sales and use taxes, and/or goods and services taxes which will be invoiced to Licensee separately. The limitation of liability in this Agreement will not apply to claims for death or personal injury or physical damage to Licensee’s tangible property caused by the negligence of Licensor or to any breach of Licensor’s obligations implied by Section C12 of the Sales of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982, and liability for defective products arising under Part 1 of the Consumer Protection Act 1987. EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 6, ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE CONDITION OF THE SOFTWARE, ITS CORRESPONDENCE TO DESCRIPTION, ITS MERCHANTABLE QUALITY OR ITS FITNESS FOR ANY PURPOSE ARE HEREBY EXCLUDED. Except as specified in this Agreement and required by U.K. Laws and statutes, Licensor shall not be liable for any loss or damage which may arise in connection with the furnishing or use by Licensee of the Software or performance of the Software. The remedies set forth in this Agreement are Licensee’s sole and exclusive remedies for any breach of Licensor’s obligations. IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR MONETARY DAMAGES IN EXCESS OF THE FEES PAID BY LICENSEE FOR THE SOFTWARE IN QUESTION OR FOR ANY LOSS, DIRECT OR INDIRECT, INCLUDING GOOD WILL AND CONSEQUENTIAL DAMAGES, WHICH MAY ARISE FROM THE USE, OPERATION OR MODIFICATION OF THE SOFTWARE BY LICENSEE. Neither party will be liable for delays in performance due to circumstances beyond its reasonable control. A party whose performance is prevented, restricted, or interfered with due to causes beyond its reasonable control, including a Force Majeure condition, shall be excused from such performance, on a day-for-day basis to the extent of such cause or condition, so long as such party provides the other party with prompt written notice describing the cause or Force Majeure condition and takes all reasonable steps to avoid or remove such causes or conditions of nonperformance, minimize the consequences thereof, and immediately continues performance whenever and to the extent such causes or conditions are removed.
16. LEGAL NOTICES. This product includes software developed by the OpenSSL Project for use in the OpenSSL Toolkit (http://www.openssl.org/). This product includes cryptographic software written by Eric Young (firstname.lastname@example.org).