Lochbox END USER LICENSE AGREEMENT
Third Millenium Communications, Inc., Callware Technologies, Inc., and its affiliates and subsidiaries (collectively, “Company”), directly and indirectly through its resellers, distributes and sells certain applications, utility programs, interfaces and other computer software (“Software”), which may from time to time be bundled with computer hardware leased, sold or otherwise provided along with the Software (“Hardware”), collectively, the “Products”). Company also provides cloud services and hosted services, consisting of electronic data transmission to service sites(“Service”).
By purchasing, downloading, installing or using the Products or Service, the user of such Products or Service (“you” or “user”) acknowledges and agrees to the terms and conditions of this Lochbox End User License Agreement (the “Agreement”). If you do not agree to the terms and conditions set forth in this Agreement, you may not purchase, download, install or use the Products or Service.
(a) Limited License. Subject to the terms of this Agreement, Company grants you a limited, personal, non-exclusive, non-sublicensable, non-transferable and non-assignable license to download, install and use the Products and Service on one or more computers in the manner prescribed herein, provided that the Products and Service are for your use for the sole purposes for which the Products and Service are designed.
(b) Ownership. The Products and Service are licensed, not sold, to you by Company for use only under the terms of this Agreement. Company retains ownership of the Products and Service, and reserves all rights not expressly granted to you including without limitation any and all worldwide copyrights, patents, trade secrets, trademarks, and proprietary and confidential information rights in or associated with the Software. This Agreement governs any Products and Service updates, upgrades, new versions, provided by Company that replace and/or supplement the original Products, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
(c) Copies; Use. You may not, under any circumstance, make copies of or attempt to duplicate, whether directly or indirectly, the Products or Service. In addition, you may not, directly or indirectly, do any of the following: (a) remove any copyright, trademark or other proprietary notices affixed to the Products or Service; (b) alter, change, repurpose or modify the Products or Service, other than as is provided for within the re-branding functionality; (c) reverse engineer, disassemble, decompile or attempt to derive source code from the Products or Service; (d) prepare derivative works, improvements or intellectual property based on the Products or Service; (e) use the Products or Service for any unlawful, immoral, unethical or unreasonable purpose or activity; or (f) cause or intend the Products or Service to be used in any way or manner that may violate the intellectual property or other personal rights (including, but not limited to, privacy rights and ownership rights) of any other person or entity.
(d) Rights. Failure by you to comply with applicable laws, rules and regulations regarding copyrights, patents and other intellectual property and personal rights may subject you to civil and criminal liability, including without limitation possible fines and incarceration, and Company will not be responsible for any breaches by you of this Agreement or violations by you of any applicable law, rule or regulation. If, for any reason, you are uncertain about your rights to copy, distribute or use any material, you should contact an attorney and obtain legal advice regarding the same. At any time during the term of this Agreement or thereafter, Company shall have the right to audit your use of the Products and Service to confirm compliance with this Agreement.
(e) Service. If the Products are designed for use with the Service, Company grants you a non-exclusive limited license to use the Products with the Service, provided you possess a valid subscription or license, as applicable, from Company to access the Service.
2. Software Upgrades
In its sole and absolute discretion, Company may, from time to time, offer fixes, updates, and upgrades to you, including, but not limited to, new versions of the Software. You may accept or reject such fixes, updates, or upgrades at your sole discretion and at your own exclusive risk. While Company may offer such items, Company is not required and is under no obligation to provide any maintenance or services to you, including (without limitation) any support, updates, enhancements, or other modifications to the Software. Unless explicitly stated otherwise in writing, the terms of this Agreement will govern any updates, or upgrades provided by Company that replaces, modifies or supplements the Software. Company may make any fixes, updates or upgrades available by automatic download, whereby you agree to accept fixes, updates or upgrades upon your download of the Software.
4. Additional Representations, Warranties and Covenants
You hereby expressly represent, warrant, covenant and agree that: (a) you have full capacity, right and authority to enter into and perform this Agreement; (b) your use of the Products and Service will not, directly or indirectly, infringe (in whole or in part) any intellectual property rights, including, but not limited to, patent, copyright, trademark, trade secret, mask work or other intellectual property rights, personal or privacy rights of any third party or Company; (c) your use of the Products and Service will in all manners and respects comply with any and all applicable laws, rules and regulations; (d) your use of the Products and Service will not in any manner, directly or indirectly, disparage, defame, discredit or harm Company or its reputation or goodwill; (e) your entry into this Agreement and/or use of the Products and Service does not breach any of your obligations to any third party, breach any contract or agreement or violate any applicable rule, law or regulation; (f) your entry into this Agreement and use of the Products and Service is for a bona fide purpose and you are not using the Products and Service to distribute any services or software for an improper, illegal, immoral or unethical purpose.
5. User Legal Compliance
You agree to comply, at your sole and own expense, with any and all applicable laws, ordinances, regulations and codes, including (without limitation) the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections, needed as a result of or in connection with this Agreement. You will immediately report to us any and all suspected or actual violations of the Agreement of which you are or should be aware.
6. Company Disclaimer of Legal Compliance
Company does not represent or warrant as to user’s compliance with applicable laws, ordinances, regulations and codes, including (without limitation) the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections, needed as a result of or in connection with this Agreement.
This Agreement shall remain effective and in full force and effect until terminated by Company at any time upon notice to you. Upon termination, you agree to discontinue any and all use of the Products and Service and destroy, delete, or uninstall any and all copies of the Software in your possession, whether on your computer or on any media or otherwise. You shall return all Hardware upon demand by Company. Following termination or expiration of the Agreement, Company may, in its sole and absolute discretion, choose to at any time erase, destroy, permanently delete any and all of your data, materials, content, information and files stored with, transmitted, or backed up through Company.
8. Intellectual Property
Nothing in this Agreement is intended to grant to you any rights including, without limitation, any patent, mask work right, copyright, trademark, title, interest in products or trade secrets of Company other than as set forth in Section 1(a). All intellectual property rights shall remain the sole and exclusive property of the Company and you shall gain no interest, right or title therein by entering into this Agreement or using the Products or Service. Further, nothing contained on or through the Products or Service, or in this Agreement, should be construed as granting (whether express, by implication, estoppel or otherwise) any license or right to you to use any intellectual property, trademarks, copyrights or other proprietary information displayed in or through the Products or Service. The absence of a product or service name or logo anywhere in the text of the Products or Service does not constitute a waiver of any trademark or other intellectual property rights concerning that name or logo.
9. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCTS AND SERVICE, AND ALL INFORMATION, SERVICES, CONTENT AND MATERIALS THEREON AND THEREWITH ARE PROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER. OTHER THAN AS EXPRESSLY PROVIDED FOR HEREIN, COMPANY MAKES NO WARRANTIES OF ANY KIND WHATSOEVER (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) TO YOU OR ANY OTHER THIRD PARTY. FURTHER, COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING (WITHOUT LIMITATION) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ALL PRODUCTS AND SERVICES OR OTHERWISE RELATED TO THIS AGREEMENT. MOREOVER, YOU AGREE THAT COMPANY WILL HAVE ABSOLUTELY NO LIABILITY WHATSOEVER WITH RESPECT TO ANY CLAIM RELATED TO, IN CONNECTION WITH OR ARISING FROM THE PRODUCTS AND SERVICE (OR THEIR USE, SUITABILITY, EFFICACY OR PERFORMANCE). SPECIFICALLY, BUT WITHOUT LIMITATION, THE COMPANY DOES NOT WARRANT THAT: (a) THE INFORMATION, SERVICES, MATERIALS OR CONTENT ON THE PRODUCTS OR SERVICE IS CORRECT, ACCURATE OR RELIABLE; (b) THE FUNCTIONS CONTAINED IN THE PRODUCTS OR SERVICE OR THROUGH THE PRODUCTS OR SERVICE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR (c) ANY DEFECTS WILL BE CORRECTED, OR THAT THE PRODUCTS OR SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU HEREBY ACKNOWLEDGE THAT USE OF THE PRODUCTS AND SERVICE IS AT YOUR SOLE AND ABSOLUTE RISK IN YOUR OWN DISCRETION. YOU AGREE THAT YOU WILL MAINTAIN A PRIMARY ELECTRONIC FILE OF YOUR DATA AND MATERIALS AND WILL NOT USE THE PRODUCTS OR SERVICE AS A SUBSTITUTE THEREFORE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS REPRESENTATIVES WILL UNDER ANY CIRCUMSTANCES CREATE A WARRANTY, UNLESS SPECIFICALLY SET FORTH IN AN EXPRESS WRITING SIGNED BY AN OFFICER OF THE COMPANY. SHOULD THE PRODUCTS OR SERVICE PROVE DEFECTIVE OR ERRONEOUS, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICE, REPAIR, OR CORRECTION AND WE WILL HAVE ABSOLUTELY NO LIABILITY WITH RESPECT THERETO.
10. Limitation of Liability
Notwithstanding anything to the contrary herein, other than pursuant to a party’s indemnification obligations under Section 11 below, in no event shall either party: (i) be liable to the other party (regardless of the theory of liability) or any third party for any indirect, special, consequential, incidental or punitive damages (including without limitation for lost profits or revenues), even if such party was informed of the possibility of such damages, related to, in connection with or arising from this Agreement or the Products or Service; or (ii) have total cumulative liability hereunder (regardless of the theory of liability) related to, in connection with or arising from this Agreement or the Products or Service exceeding ten dollars ($10.00). Any claim by you arising out of or relating to this Agreement must be brought within one (1) year after the occurrence of the event giving rise to such claim. You expressly acknowledge and agree that the limitations of liability set forth in this Section 10 are an essential element of this Agreement, and in the absence of such limitations, the economic terms of this Agreement would have been substantially different than provided herein and/or the parties would not have entered into this Agreement.
12. Changes or Specialized Modifications
The Company may, in its sole and absolute discretion, change any term of this Agreement on a prospective basis, and modify, add or discontinue any aspect, content or feature of the Products or Service, at its sole discretion. Your continued use of the Products or Service after any such modifications or changes are posted will constitute your complete and unequivocal acceptance of any such modifications or changes to the Agreement. You agree to periodically review this Agreement to ensure that you are in compliance with any ongoing changes or modifications that are made to the Agreement. To the extent that an arbitrator or court of applicable jurisdiction determines that applying any changes to these Terms would render this an illusory or unenforceable contract, such changes shall be applicable on a prospective basis only, with respect to events or circumstances occurring after the date of such changes, to the extent necessary to avoid these Terms being deemed illusory or unenforceable.
13. Equitable Relief
Notwithstanding anything to the contrary in Section 15 below, you expressly agree that any use of the Products or Service by you that violates or is inconsistent with the terms of this Agreement (in whole or in part) may: (i) cause Company irreparable damage and injunctive, and (ii) equitable or injunctive relief (including, but not limited to, specific performance) may be necessary to protect our rights or interests. Accordingly, you agree that Company may in any such instance, in its sole and absolute discretion and judgment, request any suitable injunctive or other equitable relief from any court of competent jurisdiction (without posting any bond) and that you will not assert any objection thereof (including, but not limited to, a claim that such relief is inappropriate or that the harm alleged by Company is not irreparable).
14. Sole Remedy
If you are dissatisfied for any reason with the Products or Service or the terms and conditions of this Agreement, your sole and exclusive remedy (whether at law or equity) shall be to discontinue your use of the Software and terminate this Agreement as described herein.
(a) Governing Law. This Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the State of Utah, without regard to the conflicts of law provisions thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to the Agreement.
(b) Disputes. You will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. If Company’s efforts to informally resolve any complaints, disputes, or disagreements fail, you expressly agree that any controversy, dispute or claim (“Litigation”) arising out of, relating to, or in connection with, this Agreement or the Products or Service, or the alleged breach thereof, or relating to Company under this Agreement, shall be settled by confidential binding arbitration in Salt Lake County, Utah, in accordance with the applicable rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) shall be binding on the parties and may be entered in any court having jurisdiction worldwide. Regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to the Products or Service or this Agreement must be filed or arbitrated by you within one (1) year after such claim or cause of action arose or be forever barred. In the event of any Litigation, both parties expressly and irrevocably consent to the exclusive venue and personal jurisdiction in Salt Lake County, Utah. In the event of any Litigation arising from, related to or in connection with this Agreement or the Products or Service, the prevailing party thereof shall be entitled to recover its reasonable expenses, including (without limitation) attorneys’ fees and the costs of litigation and arbitration. By downloading or using the Products or Service, you agree to binding arbitration. Company will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with Company. The agreement to arbitrate in this Section 15(b) shall not prevent Company from seeking equitable relief or other redress in any court of competent jurisdiction as it relates to Confidential Information.
(c) Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, then: (i) such provision will be enforced to the maximum extent permissible under the circumstances so as to effectuate the original intent of the parties with respect to such provisions; and (ii) the remaining provisions of this Agreement will be unaffected thereby and will continue to remain in full force and effect.
(d) Force Majeure. Company will not be liable for any failure to perform acts due to causes beyond its control (including, without limitation, electrical outage, Internet Service Provider downtime, power failure, fire, flood, strike, civil disturbance, terrorism, war or Acts of God). If any such circumstances occur, Company shall use commercially reasonable efforts to attempt to provide reasonable notice to you of the same. The time for Company to perform hereunder will be extended for a period of time equal to the duration of the delay or default caused thereby.
(e) Notices. Unless otherwise stated herein, any notices to Company hereunder shall be in writing and be delivered by mail, facsimile, or electronic mail to the persons and at the addresses as set forth below, and shall be deemed given upon (i) three (3) business days after mailing if by certified or registered first class postal mail, return receipt requested, or (ii) confirmation of transmission in the case of facsimile or electronic mail. Either party may change its address for receipt of notice to the other party by delivering written notice of such change pursuant to this Section 15(e).
8871 S Sandy Parkway
Sandy, UT 84070
United States of America
Attn: Legal Department
(f) Assignment. Neither this Agreement, nor any rights or obligations hereunder, may be assigned or otherwise transferred by you without the prior written consent of Company; Company may assign this Agreement in whole or in part to an acquirer of all or substantially all of its business or assets that are the subject matter of this Agreement without written consent. Any attempted assignment by a party in violation of this Section 15(f) shall be null and void ab initio. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors and permitted assigns.
(g) Assent. Your written or electronic signature is not necessary to manifest your assent or acceptance of this Agreement, and your use of the Products or Service as discussed herein shall in and of itself constitute such assent and acceptance, which acceptance shall constitute a valid and legally binding agreement.
(c) Construction. The article, section and paragraph headings used in this Agreement are for convenience only and shall not be used in interpreting or construing this Agreement. This Agreement shall be interpreted as having been drafted together by each of the parties and duly reviewed by each party with the assistance of its respective legal counsel.
(d) Relationship. Nothing in this Agreement will be construed to constitute an agency, partnership, joint venture or employer-employee relationship between the parties. Neither party has the power, and will not hold itself out as having the power, to act for or in the name of, or to bind, the other party. Nothing contained in this Agreement should be construed to give either party the power to direct or control the day-to-day activities of the other party. The provisions of this Agreement are intended solely for the benefit of Company and you, and shall create no rights or obligations enforceable by any other party.
(e) Waiver. Failure by Company to enforce any right, remedy or provision hereof will not be deemed a waiver of the same or any future enforcement of that or any other right, remedy or provision. A waiver by Company of any right, remedy or provision hereof shall only be effective if it is in an express writing that is signed by a duly authorized officer of Company.
(f) Entire Agreement. This Agreement contains the entire understanding between Company and you with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements or understandings (whether oral, written, implied or otherwise) between the parties with respect to the subject matter hereof.
(g) Export Restrictions. You agree to comply with applicable export and re-export laws, regulations and restrictions (including but not limited to end-user, end-use, and destination restrictions) issued by the United States, and any country where the Products or Service is to be delivered, installed or used in the performance of this Agreement. You shall disclose all pertinent information required for Company to comply with any export laws or regulations.
(h) Construction. The article, section and paragraph headings used in this Agreement are for convenience only and shall not be used in interpreting or construing this Agreement. This Agreement shall be interpreted as having been drafted together by each of the parties and duly reviewed by each party with the assistance of its respective legal counsel.
(i) Relationship. Nothing in this Agreement will be construed to constitute an agency, partnership, joint venture or employer-employee relationship between the parties. Neither party has the power, and will not hold itself out as having the power, to act for or in the name of, or to bind, the other party. Nothing contained in this Agreement should be construed to give either party the power to direct or control the day-to-day activities of the other party. The provisions of this Agreement are intended solely for the benefit of Company and you, and shall create no rights or obligations enforceable by any other party.
(j) Waiver. Failure by Company to enforce any right, remedy or provision hereof will not be deemed a waiver of the same or any future enforcement of that or any other right, remedy or provision. A waiver by Company of any right, remedy or provision hereof shall only be effective if it is in an express writing that is signed by a duly authorized officer of Company.
(k) Entire Agreement. This Agreement contains the entire understanding between Company and you with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements or understandings (whether oral, written, implied or otherwise) between the parties with respect to the subject matter hereof.
(l) Export Restrictions. You agree to comply with applicable export and re-export laws, regulations and restrictions (including but not limited to end-user, end-use, and destination restrictions) issued by the United States, and any country where the Products or Service is to be delivered, installed or used in the performance of this Agreement. You shall disclose all pertinent information required for Company to comply with any export laws or regulations.
This Agreement was last revised on January 24, 2020.
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