THIS IS AN END-USER LICENSE AGREEMENT (THE “LICENSE”) FOR THE APPGUARD, INC (“APPGUARD”) SOFTWARE AND DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE PRODUCT”). PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE CAREFULLY. BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, USING THE SOFTWARE PRODUCT AND/OR SIGNIFYING YOUR ACCEPTANCE TO THIS LICENSE, YOU ACCEPT AND AGREE TO THESE TERMS ON YOUR OWN BEHALF AND ON BEHALF OF YOUR EMPLOYER AND/OR PRINCIPAL. IF YOU DO NOT ACCEPT AND AGREE TO THESE TERMS IN THEIR ENTIRETY DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE SOFTWARE PRODUCT. BY ACCEPTING THIS LICENSE, YOU ARE BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN, INCLUDING THE WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY PROVISIONS.
1. LICENSE GRANT. AppGuard hereby grants the end-user (“Customer”) a revocable, nontransferable, and non-exclusive license to use the Software Product strictly in accordance with the terms of this License in machine-readable, object code form only. This License shall extend to all updates, upgrades, and revisions supplied by AppGuard, unless otherwise determined by AppGuard.
1.1 Customer may install and access the registered version of the Software Product on one (1) computer workstation only. Customer may make one backup copy of the Software Product for use if the original is damaged.
1.2 Customer is licensing the Software Product for end use only and not for resale or distribution, which is prohibited.
1.3 The License shall be effective until terminated. AppGuard may terminate this License immediately on written notice to the other side. Upon Termination of this License, Customer shall immediately discontinue the use of the Software Product and shall, within ten (10) days, either destroy or return to AppGuard all copies of the Software Product. The License shall expire at any time when the Customer destroys the Software Product together with all copies for any reason whatsoever.
2. COPYRIGHT; APPGUARD’S RIGHTS
2.1 Customer shall not, alone, through any employee, agent, representative, or third party (or allow an employee, agent, representative, or third party): (a) modify the Software Product, application programming interfaces (API’s), Software Product development kits (SDK’s), HTML, Cascading Style Sheet (“CSS”), any new releases, modifications and enhancements thereto, and any images, video, audio, text, and “applets” incorporated into the Software Product or any visual design elements provided or made available as part of the Software Product; (b) reverse compile, reverse assemble, reverse engineer or otherwise translate all or any portion of any Software Product; (c) copy, duplicate, replicate, use in whole or in part, or create derivative works from any element of the user interface, user experience, or features, of the Software Product; (d) share, disclose, or permit use of AppGuard user names or passwords or otherwise allow parties that are not contractually obligated to Customer to use any Software Product on a time sharing, service bureau, application service provider (ASP), rental or other basis; (e) make copies of the Software Product, except for archival purposes; (e) remove, alter or deface (or attempt any of the foregoing) proprietary notices, labels or marks in any Software Product; (f) distribute any copy of any Software Product to any third party, including without limitation selling any Product with embedded Software Product in a secondhand market; (g) use the Software Product other than as authorized by AppGuard; (h) deactivate, modify or impair the functioning of any disabling code in any Software Product; (i) circumvent or disable AppGuard’ s copyright protection mechanisms or license management mechanisms in the Software Product; (j) tamper with the Software Product or modify another website so as to falsely imply that it is associated with the Software Product, AppGuard, or any other software or service provided by AppGuard; (k) use the Software Product in violation of any applicable law or to support any illegal activity; (l) use the Software Product to violate the rights of any third party; or (m) attempt any of the foregoing.
2.2 Customer hereby acknowledges and agrees that: (i) all intellectual property rights subsisting in or relating to the Software Product, throughout the world, including but not limited to any and all (a) trademarks, service marks, domain names, twitter domains, usernames, passwords, trade dress, logos, and other brand or source distinctions, look and feel, user interface, user experience, including without limitation related registrations and applications for registration, and any and all goodwill related thereto; (b) copyrights in any and all works of authorship, including without limitation, computer programming, source code, and object code, user interfaces, and documentation, user manuals and other written materials relating to such code, copyright registrations, applications therefor, and moral rights; (c) trade secrets, know-how, specifications and drawings; (d) designs, ideas and inventions, including without limitation patents, patent applications and statutory invention registrations or certificates of invention; (e) divisions, continuations, renewals and re-issuances of the foregoing; and (f) other intellectual property rights of any type (collectively, the “AppGuard IP”) are and shall remain at all times the exclusive property of AppGuard; (ii) AppGuard IP may not be exploited, reproduced or used by Customer except as expressly permitted in this license; (iii) Customer shall not have or acquire, nor seek any right, title or interest in or otherwise become entitled to any AppGuard IP by developing, taking delivery of, making payment for, integrating, distributing or otherwise using AppGuard IP; and (iv) you agree that breach of any of the terms in this Section 2.2 shall constitute infringement of AppGuard IP and you hereby consent to any and all damages and remedies for such infringement available pursuant to applicable law.
2.3 All promotional, technical, and other documentation provided to Customer by AppGuard is proprietary and confidential information of AppGuard and is and shall remain the exclusive property of AppGuard (“AppGuard Proprietary Information”). Customer shall not, without AppGuard ‘s advance written consent, copy, reproduce, disclose to a third party, or use such AppGuard Proprietary Information, except as expressly permitted by AppGuard.
3. NO WARRANTIES; DISCLAIMERS. THE SOFTWARE PRODUCT AND ANY RELATED SERVICES OR PRODUCTS PROVIDED TO YOU BY APPGUARD OR ITS AFFILIATES ARE PROVIDED AS IS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, QUALITY, ACCURACY, OR THAT THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS OR IS FREE FROM DEFECTS. USE OF THE SOFTWARE PRODUCT IS AT YOUR SOLE RISK. NEITHER APPGUARD, NOR ITS AFFILIATES, RESPECTIVE REPRESENTATIVES, EMPLOYEES, AGENTS, OR LICENSORS WARRANT THAT USE OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. APPGUARD DISCLAIMS ANY AND ALL WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE PRODUCT, AND ANY AND ALL LIABILITY RELATED TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, SERVICE, OR OTHER DATA PROVIDED THROUGH THE SOFTWARE PRODUCT.
3.1 APPGUARD HEREBY DISCLAIMS ANY AND ALL LIABILITY RELATED TO THE ACCURACY, VALIDITY, SUBSTANCE, RELIABILITY OR EFFECTIVENESS OF THE SOFTWARE PRODUCT.
3.2 THE EXTENT OF APPGUARD’S LIABILITY HEREUNDER IS LIMITED EXCLUSIVELY TO REPLACEMENT OF YOUR COPY OF THE SOFTWARE PRODUCT WITH ANOTHER COPY OR REFUND OF THE AMOUNTS PAID TO APPGUARD FOR USE OF THE SOFTWARE PRODUCT (AS DETERMINED BY APPGUARD AT ITS SOLE DISCRETION).
4. LIMITATION OF LIABILITY. CUSTOMER AGREES THAT UNDER NO CIRCUMSTANCES WILL APPGUARD BE LIABLE FOR (I) ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING), INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, OPPORTUNITIES, LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION OR DATA, OR LOSS OF REVENUES OR DAMAGES TO BUSINESS OR REPUTATION ARISING FROM THE USE, PERFORMANCE, OR NON-PERFORMANCE OF THE SOFTWARE PRODUCT, WHETHER OR NOT APPGUARD HAS BEEN ADVISED OR MADE AWARE OF THE POSSIBILITY OF SUCH LOSS; OR (II) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME, ARISING OUT OF THE USE OF THE SOFTWARE PRODUCT. THIS LIMITATION SHALL BE VALID NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. THE SOFTWARE IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE IN ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, WHERE ANY FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY OR INDIRECTLY TO SIGNIFICANT PROPERTY DAMAGE, DATA LOSS OR DISCLOSURE, DEATH, PERSONAL INJURY, OR PHYSICAL DAMAGED.
5. EXPORT RESTRICTIONS
5.1 Customer agrees not to export or re-export this Software Product or information pertaining thereto to any country for which a U.S. government agency requires an export license or other governmental approval without first obtaining such license or approval.
5.2 Use, duplication or disclosure by the Government is subject to restrictions set forth herein or in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable.
6. INDEMNIFICATION. Customer shall indemnify and hold harmless AppGuard and its affiliates (the “Indemnified Parties”) against any loss, liability, damages, costs or expenses, including reasonable attorney’s fees incurred by the Indemnified Parties as a result of any claim, action, or proceeding arising or relating to Customer’s use, operation or implementation of the Software Product, or any breach or violation of this License by Customer or anyone on Customer’s behalf.
7. MAINTENANCE. Customer is responsible for installing Updates (as defined below) of the Software Product on a regular basis upon release of such Updates, updating all non-AppGuard software used in conjunction with the Software Product, and regularly upgrading any hardware and memory on the system in which Customer uses the Software Product. The term “Updates” as used herein means modifications to the Software Product which contain corrections of errors and minor functionality enhancements, or which add bug fixes or patches to the Software Product.
8. SUPPORT. AppGuard, in its sole discretion, may, but is not required to, provide Customer with support services related to the Software Product (the “Support Services”). Such Support Services shall be subject to a separate agreement and applicable fees.
9. SEVERABILITY. If any provision in this License is held invalid for any reason, such invalidity shall not affect the remaining provisions of this License, which shall continue in full force and effect to the full extent permitted by law.
10. CHOICE OF LAW; FORUM. The validity, construction, and interpretation of this License shall be solely and exclusively governed by and construed in accordance with the laws of the State of New York, USA, excluding any otherwise applicable rules of conflict of laws. The state and federal courts located in New York City, New York shall have sole and exclusive jurisdiction over the parties and subject matter of this License. For implementation of this License and all its consequences, each party waives such of its rights and privileges under any other law or legal system, such as the law of the place of performance, as is necessary to give effect to the term and conditions hereof. Each party hereby expressly consents to personal jurisdiction in New York, and expressly waives any right to object to such personal jurisdiction, or the convenience of such forum. The parties agree to service of process by email.
11. ENTIRE AGREEMENT. This License sets forth the entire agreement between Customer and AppGuard with respect to the subject matter hereof and all other agreements, representations, communications and understandings, both oral and written, are superseded hereby. To the extent that there are any varying or additional terms contained on any written notification or document, the terms of this License shall govern. AppGuard reserves the right to amend, modify, and otherwise alter this License from time to time and Customer hereby consents to any such amendments, modifications, and alterations.
12. NO WAIVER. The failure or delay by AppGuard to enforce any of its rights hereunder or to take action against any party in the event of any breach of this License shall in no way be deemed a waiver of any subsequent or further actions in the event of a future or other breach of the License.
13. ASSIGNMENT. Customer may not assign all or part of this License without AppGuard’ s prior written consent.
14. QUESTIONS. All questions concerning this License shall be directed to AppGuard, Inc. by filling out the “Contact Us” form on our website as follows: http://www.appguard.us
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LATEST UPDATE OF LICENSE AGREEMENT: October 15, 2019