End User License Agreement
NOTICE TO USER: PLEASE READ THIS CONTRACT CAREFULLY. BY USING, COPYING OR DISTRIBUTING ALL OR ANY PORTION OF THE SOFTWARE (“SOFTWARE”) YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE.
1. License. Intricom Technologies, LLC (“Licensor”) hereby grants the User a non-exclusive, non-transferable license to use the Software for personal use on one computer by User only. Licensor reserves the right at any time, without liability or prior notice, to change the features or characteristics of the Software, this Agreement, or the Software’s documentation and related materials.
2. License Restrictions.
a. User acknowledges that the Software and its structure, organization, and source code constitute valuable trade secrets of Licensor. Accordingly, User agrees not to (i) copy, perform, distribute, modify, adapt, alter, translate, or create derivative works from the Software; (ii) merge the Software with other software; (iii) sublicense, lease, rent, or loan the Software to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; or (v) otherwise use the Software except as expressly allowed in this Agreement.
b. Licensor retains exclusive ownership of all worldwide copyrights, trade marks, service marks, trade secrets, patent rights, moral rights, property rights and all other industrial rights in the Software and documentation, including any derivative works, modification, updates, or enhancements. All rights in and to the Software not expressly granted to User in this Agreement are reserved by Licensor. Nothing in this Agreement shall be deemed to grant, by implication, estoppel or otherwise, a license under any of Licensor’s existing or future patents.
c. The Software and documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. For U.S. Government End Users, Company agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.
d.User shall not use the Software in any way that violates any local, state, federal or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other computer crime regulations, etc. Licensor does not monitor or edit any transmissions, postings, routings or other materials which User may send, post, route, transmit or otherwise move through or with the Software.
3. Encryption Feature Specific Notice. The Software provided hereunder contains features and functionality that allows you to protect sensitive information in files and folders on your Computer. You will be required to provide a password in order to encrypt and protect such information. Additionally, you may provide challenge questions that will allow you to recover your password in the event you forget such password. In the event that you lose or cannot remember the password and the answer to the challenge questions you will not be able to recover the information you have encrypted. You acknowledge that the level of encryption used by the Software should protect your information from the average computer user; however the encryption may be broken by sophisticated users, certain software programs and government entities. Encryption without strong passwords (at least seven characters with at least 1 number, one uppercase letter, one lowercase letter and a character such as a hyphen.) can lessen the value of the protection that the Software offers. You also acknowledge that information that has been encrypted may not be unencrypted if your hard drive has bad sectors or fails. Licensor shall not bear responsibility for access of your information where you have provided your password to a third party or have failed to use reasonable efforts to protect such information, password, answers to challenge questions or for user error.
4. Export Controls. You are advised that the Software is of United States origin and subject to the United States Export Administration Regulations; diversion contrary to United States law and regulation is prohibited. You agree not to directly or indirectly export, import, download or transmit the Software to any country, end user or for any Use that is prohibited by applicable United States regulation or statute (including but not limited to those countries embargoed from time to time by the United States government). You represent that neither the United States Bureau of Industry and Security nor any other governmental agency has issued sanctions against Customer or otherwise suspended, revoked or denied Customer’s export privileges. You agree not to Use or transfer the Software for any Use relating to nuclear, chemical or biological weapons, or missile technology, unless authorized by the United States Government by regulation or specific written license. Additionally, You agree not to directly or indirectly export, import or transmit the Software contrary to the laws or regulations of any other governmental entity that has jurisdiction over such export, import, transmission or Use.
5. High Risk Activities. The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, “High Risk Activities”). Licensor expressly disclaims any express or implied warranty of fitness for High Risk Activities.
6. Legal Compliance. Licensor may suspend or terminate use of Software and this Agreement immediately upon receipt of any notice which alleges that User has used the Software for any purpose that violates any local, state, federal or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other criminal regulations, etc. of its agents, officers, directors, contractors or employees. In such event, Licensor may disclose the User’s identity and contact information, if requested by a government or law enforcement body, or as a result of a subpoena or other legal action, and Licensor shall not be liable for damages or results thereof and User agrees not to bring any action or claim against this Licensor for such disclosure.
7. Indemnification. User shall defend, indemnify and hold harmless Licensor, its officers, directors contractors, agents and employees, from any and all claims or causes of action arising out of use of or related to the Software, and pay any and all damages and expenses (including but not limited to attorneys fees incurred by Licensor and/or third parties) in connection therewith. Licensor reserves the right, at it own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User shall cooperate with the Licensor in asserting any available defenses.
8. Termination. This Agreement is effective unless terminated by Licensor at any time for any breach of this Agreement. User may terminate this Agreement at any time by destroying all copies of the Software in User’s possession and deleting the Software from User’s computer system and other storage media, or by returning all such copies to Licensor. This Agreement and User’s right to use this Software automatically terminate if User breaches this Agreement.
9. NO WARRANTY. ALL SOFTWARE AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FUNCTIONALITY OR ITS BEING VIRUS, SPYWARE OR MALWARE FREE. LICENSEE RECOGNIZES THAT THE AS IS CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH LICENSOR WOULD NOT HAVE AGREED TO ENTER THIS AGREEMENT. LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE AND SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING SOFTWARE AND SERVICES SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY WHATSOEVER. LICENSEE ACKNOWLEDGES THAT HE OR SHE HAS RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET FORTH HEREIN. THE PROVISIONS “WARRANTY WAIVER” AND “LIMITATION OF LIABILITY” SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT, BUT THIS SHALL CREATE ANY CONTINUED RIGHT TO USE THE SOFTWARE AFTER TERMINATION.
10. LIMITATION OF LIABILITY. LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF GOODWILL, OR THE LOSS OF USE OF ANY DATA, EVEN IF LICENSOR HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. UNDER NO CIRCUMSTANCES SHALL LICENSOR’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY LICENSEE UNDER THIS AGREEMENT. LICENSEE ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION.
11. Miscellaneous. Either party may assign this Agreement to any successor in interest who purchases or through change in control owns greater than fifty percent of the assets or equity of such entity and agrees in writing to be bound by the terms and conditions herein; any other assignment shall be void. This Agreement and any dispute arising hereunder shall be construed in accordance with the laws of the State of Texas without regard to principles of conflict of laws. For the purpose of this Agreement, User consents to the personal jurisdiction and venue of the state and federal courts located in the State of Texas. If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected, and this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended to so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute the same instrument. Any waiver of a provision of this Agreement must be in writing and signed by the party to be charged. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement. This Agreement constitutes the entire agreement between the parties related to the subject matter hereof, supersedes any prior or contemporaneous agreement between the parties relating to the Software and shall not be changed except by written agreement signed by an officer of Licensor.
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