End User Software License Agreement
IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY. BY CLICKING “I AGREE,” “PURCHASE”OR OTHERWISE INDICATING AGREEMENT ELECTRONICALLY, FOR EXAMPLE BYDOWNLOADING OR USING THE SOFTWARE, YOU EXPRESSLY AGREE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK “DECLINE” OR OTHERWISE CANCEL YOUR PURCHASE AND MAKE NO USE OF THE SOFTWARE.
This END USER SOFTWARE LICENSE AGREEMENT (the “Agreement”) is an agreement between you,(”You” or “Customer”) and Trusted KnightCorporation (“Trusted Knight”)which sets forth the terms and conditions of this Agreement and the Trusted KnightSoftware and Services.
Unless otherwise defined, capitalized terms have the meanings below.
a. License Grant.
Subject to these terms and conditions and as long as all fees are paid, Trusted Knight grants to Customer a worldwide, non-exclusive, non-transferable, limited, personal license, without the right to grant sublicenses, for the Term selected by you when purchasing. You may install and use the Softwaresolely for your personal or internal business purposes on the PC(s) or workstation(s) for which the Software was licensed. (i) for its intended and permitted use as identified by Trusted Knight, (ii) in accordance with this Agreement (including the limitations on the number of computersand/or User licenses set forth in the online purchasing console), (iii) for Customer’s internal purposes, and (iv) in compliance with all applicable laws. You may make one (1) back up copy of the Software.
b. Restrictions on Use.
You understand and agree that the Software, its structure, organization, operation and source code are the intellectual property of Trusted Knight, including all patent, copyright, trade secret, trademark and other rights. You will not: (i) modifyor create derivative works from the Software; (ii) merge it with other software; (iii) sublicense, distribute, sell, lease, rent, loan, or otherwise transfer the Software to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software, or unbundle any of the programs embedded in the Software; (v) publish results of any program benchmark tests without Trusted Knight’s prior written consent; (vi) exceed the permitted number of Workstations and/or Users; (vii) remove any proprietary notices on or relating to the Software; (viii) permit any third party application to access the collection of data indexed by the Software; or (ix) otherwise claim or exercise any rights in or to the Software except as expressly permitted hereunder.
c. Delivery, Installation, and Acceptance.
The Software will be deemed accepted upon downloaded delivery of the Software.
All Trusted Knight products include Maintenance with the Software during the term of your license. Maintenance is described in Exhibit A of this document.
We may use information that you provide to us for other business purposes, including.
Provision and use of the Software requires license fees to remain current. Payments may be made via credit card, debit card or PayPal in the amount equal to the per-user/per-PC licenses selected by you during enrollment. All Fees paidat the time of purchaseare non-refundable after thirty (30) days. All payments to Trusted Knight must be made in U.S. Dollars.
If at any time during the Term, you desire to increase the number of PCs, Workstations or Users for the Software you may request additional licenses through the online purchasing console. Customer may not increase its use of the Software until Trusted Knight accepts and Customer has paid for the additional licenses.
Fees are exclusive of, and Customer agrees to pay, all applicable taxes, surcharges, and similar charges.
6. Warranty; Disclaimer.
. LIMITED WARRANTY
The Software will substantially conform to its published specifications, as those exist on the date of delivery to the end user of the Software, for a period of ninety (90) days from the date of delivery. Trusted Knight’s sole obligation under this warranty shall be limited to use of commercially reasonable efforts to correct the Software as soon as practical after licensee has notified Trusted Knight in writing of nonconformance.
Except As Expressly Set Forth Above, The Software, The Maintenance, And Any Other Services That May Be Provided By Trusted Knight To Customer Are Provided “As Is” Without Any Warranty Of Any Kind. Trusted Knight, On Behalf Of Itself And Its Suppliers, Hereby Expressly Disclaims All Other Warranties With Regard To The Software, The Documentation, The Maintenance, And Any Other Services, Whether Express, Implied, Statutory Or Otherwise, Including, Without Limitation, Any Implied Warranties Of Merchantability, Fitness For A Particular Purpose, Title And Non-Infringement And Any Warranties Arising Out Of Course Of Dealing Or Course Of Performance. Trusted Knight Does Not Warrant That Customer’S Use Of The Software Shall Be Error-Free, Uninterrupted, Virus-Free, Or Secure. Customer Acknowledges That It Has Relied On No Other Warranties And That No Other Warranties Are Made Herein By Trusted Knight Or Any Of Trusted Knight’S Suppliers. Some States Or Jurisdictions Do Not Allow The Exclusion Of Implied Warranties Or Limitations On How Long An Implied Warranty May Last, So The Above Limitations May Not Apply To Customer. To The Maximum Extent Permitted By Applicable Law, Any Implied Warranties Are Limited To Thirty (30) Days. The Disclaimers Of Warranties And Damages And Limitations On Liability Shall Survive And Continue To Apply After Termination.
a. By Trusted Knight.
Trusted Knightowns or otherwise has the necessary rights to provide the Software and Services, however, ifthe Software becomes, or in Trusted Knight’s opinion is likely to become, the subject of a claim by a third party alleging that the Software as and in the manner provided directly infringes that third party’s rights, Trusted Knight may, at its option and expense, either (i) procure for Customer the right to continue using the Software, (ii) replace or modify the Software so that it becomes non-infringing, or (iii) accept return of the infringing Software, terminate the Agreement and issue a partial refund for a prorated portion of the Software Fees already paid for the then-current Term.
Notwithstanding the foregoing, Trusted Knight shall have no obligations under this Section, and Customer will defend and indemnify Trusted Knight, with respect to any infringement claim based upon: (a) use of the Software not in accordance with this Agreement, or for purposes not intended by Trusted Knight; (b) the use or combination of the Software with other products, equipment, software or data not supplied by Trusted Knight (c) use of any Major Release of the Software other than the most current Major Release made available to Customer; (d) modification of the Software by any person or entity other than Trusted Knight; or (e) any activities of Customer or its representatives after Trusted Knight has notified Customer that such activities may result in the infringement of the Intellectual Property Rights of any third party. This Section 7a. states Trusted Knight’s entire liability and Customer’s exclusive remedy for claims of intellectual property infringement.
8. Limitation of Liability.
In No Event Will Trusted Knight Or Its Licensors Be Liable For Any Indirect, Exemplary, Special, Consequential, Incidental Or Punitive Damages Of Any Kind, Including, Without Limitation, Lost Profits Or Costs Of Procurement Of Substitute Goods Or Services, However Caused And Regardless Of Theory Of Liabiltiy Arising Out Of The Use Of Or Inability To Use The Software, Even If Trusted Knight Has Been Advised Of The Possibility Of Such Damanges. Except As Expressly Set Forth In This Agreement, Trusted Knight Or Its Licensors Shall Not Be Liable For Any Claims Of Third Parties Relating To This Agreement. In No Event Shall Trusted Knight’S Or Its Licensor’S Aggregate Liability Hereunder, Whether In Contract, Tort (Including Negligence), Or Otherwise, Exceed The Fees Actually Received By Trusted Knight Pursuant To This Agreement. The Warranty And Limitation Of Liability Contained In This Agreement Are Fundamental Parts Of The Basis Of Trusted Knight’S Bargain Hereunder, And Customer Acknowledges That Trusted Knight Would Not Be Able To Provide The Product To Customer Absent Such Limitations. In Those States And Jurisdictions That Do Not Allow Certain Limitations Of Liability, Trusted Knight’S Liability Shall Be Limited To The Greatest Extent Permitted Under Applicable Law.
9 Term and Termination.
This Agreement shall become effective as of the purchase or renewal date and, unless earlier terminated as provided herein, shall continue for the Term selected during enrollment.
Either party may terminate this Agreement, in whole or in part, if the other party breaches any material provision of this Agreement and does not cure such breach within thirty (30) calendar days after receiving written notice thereof.
c. Effects of Termination.
. Upon expiration or termination of this Agreement for any reasonall licensed rights granted in this Agreement shall immediately terminate and the Software will no longer be operational.
Sections 2, 6, 7, 8, 9, 10, and 11,together with any accrued payment obligations, shall survive expiration or termination of this Agreement for any reason.
a.Trusted Knight Information; Right to Disclose
Customer shall protect and keep confidential all information relating to the Software, the Documentation and any information concerning Trusted Knight’s technology or business that is furnished to Customer hereunder.
b.Customer Information; Right to Disclose.
a. Export Restrictions.
Customer assumes all responsibility for download and use of the Software outside the U.S. and for compliance with U.S. export control laws, regulations and requirements. Without limiting the generality of the foregoing, hardware, Software, technology or services provided under this Agreement may not be exported, re-exported, transferred or downloaded: (i) to or within (or to a national resident of) countries under U.S. economic embargo; (ii) to persons or entities listed on the U.S. Department of Commerce Denied Persons List, Entity List of proliferation concern or on any U.S. Treasury Department Designated Nationals exclusion list, or to parties directly or indirectly involved in the development or production of nuclear, chemical, biological weapons or in missile technology programs as specified in the U.S. Export Administration Regulations (15 CFR 744). Customer acknowledges and agrees that it is not located in (or a national resident of) any country under U.S. economic embargo, not identified on any U.S. Department of Commerce Denied Persons List, Entity List or Treasury Department Designated Nationals exclusion list, and not directly or indirectly involved in the development or production of nuclear, chemical, biological weapons or in missile technology programs as specified in the U.S. Export Administration Regulations. Customer is responsible for complying with applicable laws and regulations in all countries with jurisdiction over Customer activities authorized by thisAgreement, and for obtaining export, re-export and import authorizations that may be required due to these activities. Customer’s violation of applicable export control laws, regulations and requirements is a breach of this Agreement for which Trusted Knight may terminate, or suspend performance of, this Agreement. Customer agrees to indemnify Trusted Knight against any damages Trusted Knight incurs as a result of such violation.
Customer may not assign or transfer, by operation of law or otherwise, any of its rights or obligations under the Agreement to any third party without Trusted Knight’s written consent. Any attempted assignment or transfer in violation of the foregoing shall be null and void. Trusted Knight shall have the right to freely assign the Agreement.
Trusted Knight may provide Maintenance, Service, and Account related notices to Customer via email. Notices shall be deemed effective the next business after being mailed e;ectronically. Either party may change its email address by giving written notice of the new address to the other party, in accordance with this Section 11.
Customer acknowledges that the Software contains valuable trade secrets and proprietary information of Trusted Knight, that any actual or threatened breach of this Agreement constitutes immediate, irreparable harm to Trusted Knight for which monetary damages would be an inadequate remedy. Customer acknowledges that injunctive relief is an appropriate remedy for such breach.
This Agreement shall be governed by the laws of the State of Delaware without regard to any of its conflicts of law provisions that would require the application of the laws of a different state. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act applies to this Agreement. This Agreement represents the complete and exclusive statement of mutual understanding of the parties in regard to the subject matter herein and the Trusted Knight Products indicated in the Purchase Order, and takes precedence over all previous agreements relating to same. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. No oral or written representation that is not expressly contained in this Agreement is binding on Trusted Knight or Customer. No amendment to this Agreement shall be binding on either party unless in writing and signed by both parties. For purposes of clarification, the parties acknowledge and agree that any terms and conditions printed on a Purchase Order, or other purchase document, shall not be considered part of this Agreement or binding on either party unless such terms are included by a Reseller or Customer at Trusted Knight’s specific direction. 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 and enforceable. Without limiting the generality of the foregoing sentence, Customer acknowledges that Section 9 shall remain in effect notwithstanding the unenforceability of any provision in Section 7.
Exhibit A Maintenance Terms
“Error” means a reproducible defect in the Supported Software when operated on a Supported Environment, which causes it to not operate substantially as described in the Documentation.
“Maintenance Term” means the one year period beginning on the purchase or renewal date of a perpetual license grant and for any termed licensed, the period indicated in the online purchasing console.
“Resolution” means a modification or workaround to the Supported Program or Documentation, or other information provided by Trusted Knight to Customer intended to resolve an Error.
“Supported Environment” means the configuration of the hardware and the operating system(s) for which the Software is created to operate or depend, as described in the online purchase website.
“Supported Program” means the then-current Major Release and the immediately preceding Major Release of the Software.
2. Maintenance Provided.
2.1 Email Support.
Trusted Knight shall email support to Customer during the Support Hours. Support shall include the following:
(a) Clarification of functions and features of the Supported Software;
(b) Guidance in operation of the Supported Software
(c) Assistance in identifying and verifying the causes of suspected Errors in the Supported Software; and
(d) Advice on bypassing identified Errors in the Supported Software, if reasonably possible.
2.2 Self-Service Support.
Via Trusted Knight’s Internet site (www.trustedknight.com), Customer may access Frequently Asked Questions (FAQs)and other documents.
2.3 Resolution of Errors.
Trusted Knight shall use commercially reasonable efforts to provide a Resolution to the Supported Software.
Trusted Knight shall provide Maintenance only for the Supported Software. Trusted Knight shall have no responsibility under the Agreement to fix any Errors arising out of or related to the following causes: (a) Customer’s modification of the Supported Software (in whole or in part); (b) use of the Supported Software in an environment other than a Supported Environment; or (c) accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure or fluctuation of electric power, air conditioning or humidity control; failure of media not furnished by Trusted Knight; excessive heating; fire and smoke damage; operation of the Supported Software with other media and hardware, software or telecommunication interfaces not meeting or not maintained in accordance with the manufacturer’s specifications; or causes other than ordinary use. Any corrections performed by Trusted Knight for such Errors shall be made, in Trusted Knight’s reasonable discretion, at Trusted Knight’s then-current time and material charges.
3. Software Releases.
Trusted Knight shall provide Software Releases as and when developed for general release in Trusted Knight’s sole discretion so long as Trusted Knight has received the applicable Maintenance Fees.