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END USER LICENSE AGREEMENT
This End User License Agreement (this “EULA”) is a legal contract between Customer’s Business name (“you”) as either an individual or a single business entity, and IDENTOS Inc. and its affiliates (collectively, “IDENTOS”).
READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY BEFORE DOWNLOADING IDENTOS’S PROPRIETARY SOFTWARE (the “Software”) OR USING THE SOFTWARE AND THE HARDWARE (the “Hardware”) THAT IT RUNS ON. THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS EULA, NOT SOLD TO YOU. BY DOWNLOADING THE SOFTWARE, AND/OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS EULA, YOU SHOULD REFRAIN FROM ACCESSING OR USING THE SOFTWARE. THIS EULA REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND IDENTOS CONCERNING THE SOFTWARE, AND THIS EULA SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH IDENTOS RELATING TO THE SOFTWARE. THE SOFTWARE IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES.
1.1. Grant of License. IDENTOS hereby grants to you, and you accept for use by you, your affiliates and your third party service providers (including consultants and contractors), a limited, nonexclusive license to use the Software and any user manuals accompanying the Software (the “Documentation”), only as authorized in this EULA. For purposes of this EULA, the “Software” includes any updates, enhancements, modifications, revisions, or additions to the Software made by IDENTOS and made available to end-users through IDENTOS’s web site or customer portal. Notwithstanding the foregoing, IDENTOS shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software.
1.2. Scope of Use. You, your affiliates and your third party service providers (including consultants and contractors) may use the Software activated by a license in accordance with the number of users and user licenses identified in the applicable Schedule between you and IDENTOS or the authorized reseller. For purposes of this EULA, “use” of the software means loading the Software into the temporary or permanent memory of a computer/device. The Software may not be used on or distributed to a greater number of computers/devices than you have licenses for. If you use or distribute the Software to multiple users, you must ensure that the number of users does not exceed the number of user licenses you have obtained, or you will be in breach of this EULA.
1.3. Copies and Modifications. You may not reverse engineer, decompile, disassemble, or otherwise translate the Software. You may not modify or adapt the Software in any way. You may make one copy of the Software, or the Documentation solely for backup or archival purposes. Any such copies of the Software or Documentation shall include any copyright or other proprietary notices that were included on such materials when you first received them. Except as authorized in this Section, no copies of the Software or Documentation may be made by you or any person under your authority or control.
1.4. Assignment of Rights. You will not sublicense, lease, rent, or lend your rights in the Software or Documentation as granted by this EULA, with any third party without prior written consent of IDENTOS. For clarification, this provision is not intended to, nor does it, restrict any use of the Software by your affiliates and third party service providers for the applicable Schedule and purpose set forth in Section 1.2.
2. WARRANTY AND DISCLAIMERS
2.1. Limited Hardware Warranty. IDENTOS warrants to you for a period 12 months commencing from the date of original shipment by IDENTOS, the Hardware portion of the product(s) purchased from IDENTOS or its authorized resellers (and fully paid for) shall be materially free of defects in material and workmanship under normal use and will materially conform to IDENTOS’s published specifications applicable to the product release purchased. This warranty applies to you only as the purchaser and end user of the Product. In the event the Hardware fails to comply with the foregoing warranty during the applicable warranty period, (a “Defect”), IDENTOS, at its sole discretion, shall repair or replace the Hardware that is determined to be defective and provide a workaround for the non-conforming Hardware. The Hardware may include some used, refurbished or remanufactured components which are warranted the equivalent of new.
2.2. Limited Software Warranty. IDENTOS warrants to you for a period of 12 months commencing from the date of original shipment by IDENTOS, the software portion of products purchased from IDENTOS or its authorized resellers (and fully paid for) will perform substantially in accordance with the IDENTOS’s published specifications applicable to the software portion of Product. This limited warranty extends only to you as the licensee. IDENTOS does not warrant or guarantee that the Software is free from errors or “bugs” or that you will be able to operate the Software without interruption or problems or that the functions in the Software will operate in all combinations of hardware or software which may be selected by you or will meet your requirements.
2.3. DISCLAIMERS. THE FOREGOING WARRANTIES DO NOT APPLY IF THE PRODUCT (i) HAS NOT BEEN INSTALLED, OPERATED, REPAIRED, OR MAINTAINED IN ACCORDANCE WITH IDENTOS’S REASONABLE INSTRUCTIONS, (ii) HAS BEEN MISHANDLED, MISTREATED, USED OR MAINTAINED OR STORED OTHER THAN IN CONFORMITY WITH IDENTOS’S APPLICABLE PRODUCT SPECIFICATIONS, (iii) HAS BEEN SUBJECTED TO ABNORMAL PHYSICAL OR ELECTRICAL STRESS, ENVIRONMENT, NEGLIGENCE, ACT OF GOD, OR ACCIDENT. ANY PRODUCT SOLD OR, IN THE CASE OF SOFTWARE, LICENSED, FOR BETA, EVALUATION, TESTING, OR DEMOSTRATION PURPOSES FOR WHICH IDENTOS DOES NOT RECEIVE A PAYMENT OF PURCHASE PRICE OR LICENSE FEE IS PROVIDED “AS IS” WITH NO WARRANTY AND SHALL ONLY BE USED FOR TESTING OR EVALUATION, AS AUTHORIZED BY IDENTOS, AND NOT USED FOR PRODUCTION ENVIRONMENTS OR USE. THE WARRANTIES AND DISCLAIMERS ABOVE CONSTITUTE IDENTOS AND ITS AUTHORIZED RESELLERS, SUPPLIERS AND LICENSORS SOLE AND EXCLUSIVE LIABILITY HEREUNDER AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DEFECTIVE OR NONCONFORMING ITEMS AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, PERFORMANCE, OR NON-INFRINGEMENT. IN NO EVENT SHALL IDENTOS’S LIABILITY UNDER THIS WARRANTY EXCEED THE COST OF REPAIR OR REPLACEMENT OF SUCH DEFECTIVE ITEM. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
3. INTELLECT PROPERTY & CONFIDENTIALITY
3.1. Use Reporting, License Violations and Remedies. IDENTOS reserves the right to gather data on Software usage and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this End-User License EULA. IDENTOS expressly prohibits simultaneous, multiple installations of our licensed products without prior written approval. Any unauthorized use shall be considered by IDENTOS to be a violation of the EULA. IDENTOS reserves the right to remedy violations immediately upon discovery, by charging the then current list price of unauthorized license to the creditcard used to make the original, authorized purchase, or by any other means necessary. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this EULA. Any blocking of data required for compliance under this EULA is considered to be violation of this EULA and will result in immediate termination of this EULA pursuant to Section 4.
3.2. Proprietary Rights to Software and Trademarks. You acknowledge that the Software and the Documentation are proprietary to IDENTOS, and the Software and Documentation are protected under standard copyright law and international treaties. You further acknowledge and agree that, as between you and IDENTOS, IDENTOS owns and shall continue to own all right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This EULA does not grant you any ownership interest in or to the Software or the Documentation, but only a limited right of use that is revocable in accordance with the terms of this EULA. Any and all trademarks or service marks that IDENTOS uses in connection with the Software or with services rendered by IDENTOS are marks owned by IDENTOS. This EULA does not grant you any right, license, or interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks.
3.3. Confidentiality. You shall permit only authorized users, who possess rightfully obtained licenses to use the Software or to view the Documentation. Except as expressly authorized by this EULA, you shall not make available the Software or Documentation to any third party. You will use your best efforts to cooperate with and assist IDENTOS in identifying and preventing any unauthorized use, copying, or disclosure of the Software, Documentation, or any portion thereof.
4. LICENSE FEES
The Software will be available to you for use upon your receipt of one or more licenses. Upon acceptance of this EULA, you may obtain one or more licenses. The license fees paid by you or an authorized reseller are paid in consideration of the license granted under this EULA. Except as otherwise set forth herein, IDENTOS does not refund license fees.
5. TERM & TERMINATION
This EULA is effective upon your acceptance of the EULA, or upon your downloading, accessing, and using the Software, even if you have not expressly accepted this EULA. This EULA shall continue in effect until terminated. Without prejudice to any other rights, this EULA will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. If you are leasing the Software, and fail to pay the applicable license fees, IDENTOS shall have the right to restrict, limit or remove access. IDENTOS may terminate this License EULA if you breach any term of the EULA by giving you written notice of your breach and IDENTOS’s decision to terminate the EULA. Upon termination of the EULA by IDENTOS, you agree to either return to IDENTOS the Software, Documentation, all copies thereof or to destroy all such materials and provide written verification of such destruction to IDENTOS.
6. REMEDIES & INDEMNIFICATION
6.1. If you learn of any actual or threatened infringement or piracy of the Software, or if any infringement or piracy claim is made against you by a party other than IDENTOS in connection with your use of the Software, you shall notify IDENTOS in writing of the infringement, piracy or claim as soon as is reasonably possible. IDENTOS shall in its sole discretion determine what action if any to take with respect to the foregoing and shall assume the defense or and bear the expenses of any such action (except to the extent, if any, to which such dispute or costs arise from your negligence, willful misconduct or modification of the Software). In the event that the use of the Software in accordance with the provisions of this EULA is declared by a court of competent jurisdiction to infringe the rights of any third party, as your sole remedy, IDENTOS at its option shall (i) procure for you the right to use the Software, or (ii) modify the Software to render it non-infringing.
6.2. You will, at your own expense, indemnify and hold IDENTOS, and its subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees (collectively, “Claims”), arising out of any use of the Software by you, any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this EULA.
6.3. IDENTOS will have no obligation to indemnify you for claims that the Product infringe the intellect property rights of a third party to the extent such claims arise as a result of:
(1) your combination of the Product with other products or services not reasonably foreseeable by IDENTOS where the Product would not have been infringing without such combined use,
(2) IDENTOS’s implementation of your originated design where the Product would not have been infringing without such implementation of your originated design,
(3) your modification of the Product where the Product would not have been infringing without such modification.
7. LIMITATION OF LIABILITY
IDENTOS’S CUMULATIVE LIABILITY TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS EULA, INCLUDING WITHOUT LIMITATION IDENTOS’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS, SHALL BE LIMITED TO THE AMOUNT OF FEES PAID TO IDENTOS BY YOU UNDER THE RELEVANT AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. IN NO EVENT SHALL IDENTOS BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, EVEN IF IDENTOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. GENERAL TERMS
8.1. Governing Law and Choice of Forum. This EULA shall be governed by and interpreted in accordance with the laws of the Province of Ontario, Canada, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this EULA shall be resolved in the Federal or Provincial courts situated within Canada. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts.
8.2. Severability. If any term or provision of this EULA is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation.
8.3. Survival. Articles 2, 5, 6, 7, and 8 of this EULA and all Sections thereof, shall survive the termination of this EULA, regardless of the cause for termination, and shall remain valid and binding indefinitely.
8.4. Headings. The Article and Section headings contained in this EULA are incorporated for reference purposes only and shall not affect the meaning or interpretation of this EULA.
8.5. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
8.6. Amendment. IDENTOS reserves the right, in its sole discretion, to amend this EULA from time to time. If you do not accept amendments made to this EULA, then this license will be immediately terminated pursuant to Section 4.
8.7. Duties and Taxes. You shall, in addition to the license fees required under this EULA, pay all applicable sales, use, transfer, or other taxes and all duties, however designated, that are levied or imposed by reason of the transaction contemplated under this EULA, excluding income taxes on the net profits of IDENTOS. You shall reimburse IDENTOS for the amount of any such taxes or duties paid or incurred directly by IDENTOS as a result of this transaction.