THIS END USER LICENSE AGREEMENT IS A LEGALLY BINDING CONTRACT THAT SHOULD BE READ IN ITS ENTIRETY. THIS IS AN AGREEMENT GOVERNING YOUR USE OF iSpring SOFTWARE, FURTHER DEFINED HEREIN AS “PRODUCT”, AND THE LICENSOR OF THE PRODUCT IS WILLING TO PROVIDE YOU WITH ACCESS TO THE PRODUCT ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. BELOW, YOU ARE ASKED TO ACCEPT THIS AGREEMENT AND CONTINUE TO INSTALL OR, IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, TO DECLINE THIS AGREEMENT, IN WHICH CASE YOU WILL NOT BE ABLE TO INSTALL OR USE THE PRODUCT. BY INSTALLING THIS PRODUCT, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This End User License Agreement (the “Agreement”) is a legal agreement between You (either an individual or an entity), (the “Licensee” or “You”), and iSpring Solutions, Inc., a Virginia corporation, USA and its affiliates and suppliers (collectively, the “Licensor”), and collectively with Licensee, the “Parties” and each, a “Party”) regarding the Licensor’s current version of Licensor’s software (the “Software”), Maintenance Releases and Minor Upgrades to the Software (the "Updates”), (provided that the Updates shall not include New Releases) and the Documentation, and together with the Software and Updates, the "Product"), that You about to download, downloaded, or otherwise obtained through other resources or media such as CD-ROMs, or through a network in object code form or other related services.
You are subject to the terms and conditions of this End User License Agreement whether You access or obtain the Product directly from the Licensor, or through any other source.
By Using the Product, You agree to be bound by the terms and conditions of this Agreement. If You do not agree to the terms and conditions of this Agreement, the Licensor is unwilling to license the Product to You. In such event, You may not Use the Product in any way. DEFINITIONS.
"Client Devices" means computers, workstations, personal digital assistants, hand-held devices, or other electronic devices for which the Software was designed. “Commercial Use” means any Use of the Product for legal business, commercial or government purpose in accordance with Documentation. “Content Library” means a digital library owned and operated by Company, with a focused collection of digital objects, including but not limited to the following components: images, templates, icons and backgrounds (the “Content Library Components”). “Documentation” means the user documentation and associated materials or files related to the Product and provided in written, “online” or electronic form. “iSpring Licensing Server” means Licensor’s computer software system which provides copies of the Product with concurrent licenses in order to enable the licensed Product to run on Client Devices.
iSpring Licensing Server is provided with the Product and allows You to Use the product by a number of concurrent users, limited by applicable License Key. A full functionality of the Product may be enabled only if the Product is connected to iSpring Licensing Server. "License Key" means a file or a unique sequence of digits and/or symbols provided to You by the Licensor confirming the purchase of the license from the Licensor, which may carry the information about the License, i.e. its type, the user name and the number of licenses purchased in accordance with the License, as defined below, granted under this Agreement, and may enable the full functionality of the Product "Licensor Site” means the Internet website maintained by or on behalf of Licensor from which the Software and Product is available for download pursuant to a license from Licensor. The Licensor Site is currently located at: www.ispringsolutions.com. "Maintenance Releases" means small software updates that improve the functionality of the Software and do not contain any new significant features or enhancements, as they may be issued to the public from time to time. Maintenance Releases are represented by the number that goes after the second decimal point in the Version number. For example, 9.1.1, 9.1.2, and 9.1.3 are maintenance releases of Version 9. "Major Upgrades" means new versions of the Software that significantly enhance the Software with qualitative changes in functionality and usability, and which bear a new first numeral such as 8.0 or 9.0, as they may be issued to the public from time to time. "Minor Upgrades" means new versions of the Software that improve functionality or add new features to the product, and bear a new second numeral after the first decimal, such as 8.5 or 8.6, as they may be issued to the public from time to time. “New Release” means a new subsequent which significantly enhances a product with qualitative changes in functionality and usability releases of the Software bearing a new first numeral such as 8.0 or 9.0. "Organization" means, without limitation, any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority. “Personal Use” shall mean personal non-commercial use, and not on behalf or for the benefit of any clients and excludes any commercial purposes whatsoever, which include without limitation: advertising marketing and promotional materials/services on behalf of an actual client, employer, employee or for Your own benefit, any products that are commercially distributed, whether or not for a fee, any materials or services for sale or for which fees or charges are paid or received. Additionally, the individual licensing terms may specify other terms, conditions and restrictions of Using the Product. "Use" means accessing, storing, loading, installing, executing, displaying, or copying the Product into the memory of a Client Device or otherwise benefiting from using the functionality of the Product in accordance with the Documentation. “You” means the individual person installing or Using the Product on his or her own behalf; or, if the Product is being downloaded or installed on behalf of an organization, such as an employer, or the organization for which the Product is downloaded or installed and You represent that You have authorized the person accepting this agreement to do so on Your behalf. For purposes hereof the term “organization,” without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
Whether You access or obtain the Product through the subscription “You” means the named, designated subscriber for applicable subscription period (“Subscription Term”).
“Your Content” means content, products, materials, services or information created by You or Users by using the Content Library.
2. Grant of License.
2.1. License. The Licensor hereby grants to You a non-exclusive and non-transferable license, without rights to sublicense, to Usethe specified version of the Software on a specified number of Client Devices as reflected in the License Key and/or invoicing terms specified in the applicable invoicing or packaging for the Product pursuant to the terms and conditions of this Agreement (“License”)and You hereby agree and accept such License as follows:
a) Individual License. If the Product is licensed under Individual License You may Use one copy of the Product on one (1) Client Device solely for Personal Use.
b) Commercial Use License. If the Product is licensed under Commercial License You may Use the Product for Personal or Commercial Use in accordance with the Documentation and published functionality of the Product. One purchased License for any Product licensed under Commercial License entitles You to Use one copy of the Product on one (1) Client Device by a single permitted user, provided that if multiple or volume licenses are purchased, the number of the Client Devices and/or the number of permitted users shall be as provided and permitted by invoicing terms and/or applicable License Key. You may request for additional license activation. The Licensor reserves the right at its sole discretion to decide if You can get additional license activation.
c)Concurrent Use License. If the Product is licensed under Concurrent Use License, You may Use the Product for Personal or Commercial Use in accordance with the Documentation and published functionality of the Product. One purchased License for any Product licensed under Concurrent Use License entitles You to install the Product on a number of servers owned or leased by You connected to iSpring Licensing Server for use by a number of concurrent users, as provided and permitted by invoicing terms and/or applicable License Key. You may extend the number of concurrent users, as available, by paying the additional fees to Licensor.
Licensor shall provide You with a new build of the Product with Concurrent Use License during the term of the Agreement immediately after the build is issued. You must reinstall the Product within (3) days after the new build of the Product is provided to You. d) Educational Purpose License; Educational Institution Site License; and Non-profit License. If the Product is licensed to You under an Educational Purpose License, Educational Institution Site License or Non-profit Use License upon the terms specified in the applicable invoicing or packaging for the Product, You may make Use of the Product solelyfor the following purposes, respectively:
i. “Educational Purpose” means that You may make use of the Product solely for non-commercial study or research that is undertaken solely in furtherance of one’s education, whether or not completed by a student in pursuit of an educational degree, certificate or diploma and as used by teachers or facilitates teaching of a class, and all administrative staff, faculty and employees, of any college, university, trade school or other school (“Educational Institution”). Under “Educational Institution Site License” You may install and Use the Product by a number of users determined by the applicable invoicing terms within one Educational Institution in one geographic location;
ii. “Non-profit Purpose” means any non-commercial activity or research that is undertaken solely in furtherance of one’s duties as part of the non-profit organization purposes narrowly interpreted.
Educational Purpose License and Non-profit License may be granted exclusively at the discretion of the Licensor upon Your submission of a written request discussing Your and Your employer/employees activities, when applicable, and Your reasons for and purposes of Using the Product. e) Site License. If the Product is licensed with site license terms You may install and Use the Product, within a single building owned or leased by Your organization, on a number of Client Devices as permitted by invoicing terms or applicable terms and conditions regarding the Site License set forth in the applicable product invoicing or packaging for the Product. f) Subscription License. If the Product is licensed under Subscription License, subscriber may install and Use the Product only for the maximum number of authorized Users and only for the duration of the Subscription Term. 2.2. Updates; Maintenance and Support Services. Licensor will not provide You with any support services under this Agreement. This Agreement does not give You any rights to any Updates or Upgrades to the Software or to any extensions or enhancements to the Software developed by Licensor at any time in the future.
Licensor offers support services separately. Licensor will use commercially reasonable efforts to provide You with email support and maintenance services for the Product in accordance with its standard practices and Software Maintenance and Support Services Agreement (“Maintenance and Support Services”) available at http://www.ispringsolutions.com/maintenance-and-support-services-agreement. Licensor will have no obligation to support any version of the Software other than the then current version. You may extend the Maintenance andSupport Services, as available, by signing up and paying the appropriate annual subscription and fees to Licensor. Among other benefits ofthe Maintenance andSupport Services is that, during the term thereof, You may download free Updates to the Product when and as the Licensor publishes them in its website or through other online services. Support terms and conditions are subject to change without notice. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant You any rights or licenses with regard to the New Releases of the Product or to entitle You to any New Release. This Agreement does not obligate the Licensor to provide any Updates. Notwithstanding the foregoing, any Updates that You may receive become part of the Product and the terms of this Agreement apply to them (unless this Agreement is superseded by a further Agreement accompanying such Update or modified version of to the Product). If You are not using a licensed copy of the Product, You are not allowed to install the Updates.
2.3. Multiple Environment Product; Multiple Language Product; Dual Media Product; Multiple Copies; Bundles. If You use different versions of the Product or different language editions of the Product, if You receive the Product on multiple media, if You otherwise receive multiple copies of the Product, or if You received the Product bundled with other software, the total permitted number of Your Client Devices on which all versions of the Product are installed shall correspond to the number and types of licenses You have obtained from the Licensor. You may not rent, bundle with other products or materials, lease, sublicense, lend or transfer any versions or copies of the Product regardless of whether You use the Product or not without Licensor’s written consent.
2.4.UPGRADES. To use Software identified as an Upgrade, You must first be licensed for the Software identified by Licensor as eligible for the Upgrade. Except as otherwise provided in writing, after upgrading, You must deactivate the Software, that formed the basis for Your Upgrade eligibility and may no longer Use it.
3. TRIAL LICENSES.
3.1. General. If available, the Software may be activated with no-cost evaluation Software License Key(s).
3.2. Evaluation License. If the Product is licensed under Evaluation License terms as reflected in the License Key specified in the applicable invoicing or packaging for the Product You may Use the Product and Third Party Components contained in the Product for 14 (fourteen) days (or such other period as agreed in writing by Licensor) (the “Trial Period”) solely for purposes of demonstration and internal testing, examination and evaluation of the Product. Any Use of the Product and Third Party Components contained in the Product for other purposes or beyond the applicable evaluation period is strictly prohibited.
3.3. Trial Periods. If the Software was provided to You at no charge on a trial or evaluation basis, then the Software may be used only for the Trial Period unless You purchase a further license to the Software at the end of the Trial Period. 3.4. THE PRODUCT LICENSED UNDER EVALUATION LICENSE TERMS IS PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR BEARS NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE PRODUCT LICENSED UNDER EVALUATION LICENSE TERMS THROUGH AND AFTER THE TRIAL PERIOD. 3.5. Support Services.
Licensor will use commercially reasonable efforts to provide You with Base Support services for the Product licensed under Evaluation License terms in accordance with its standard practices and Software Maintenance and Support Services Agreement (“Maintenance and Support Services”) available at http://www.ispringsolutions.com/maintenance-and-support-services-agreement. 4. Proprietary Rights and Non-Disclosure.
4.1. Ownership Rights. The Product is licensed, and not sold, to You for use only under the terms and conditions of this Agreement. The Product is protected by copyright and other intellectual property laws and treaties. You agree that the Product and the authorship, systems, ideas, methods of operation, documentation and other information contained in the Product, are proprietary intellectual properties and/or the valuable trade secrets of the Licensor or its suppliers and/or licensors and are protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent of the United States, other countries and international treaties. You may use trademarks only insofar as to identify printed output produced by the Product in accordance with accepted trademark practice, including identification of trademark owner’s name. Such use of any trademark does not give You any rights of ownership in that trademark. The Licensor and/or its suppliers own and retain all right, title, and interest in and to the Product, including without limitations any error corrections, enhancements, Updates or other modifications to the Software, whether made by the Licensor or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the Product does not transfer to You any title to the intellectual property in the Product, and You will not acquire any rights to the Product except as expressly set forth in this Agreement. All copies of the Product made hereunder must contain the same proprietary notices that appear on and in the Product. Except as stated herein, this Agreement does not grant You any intellectual property rights in the Product and You acknowledge that the License, as further defined herein, granted under this Agreement only provides You with a right of limited use under the terms and conditions of this Agreement. Licensor reserves all rights not expressly granted to You in this Agreement.
4.2. Third Party Components. Licensor’s Products and future updates and revisions of Licensor’s Products may contain components and materials (including but not limited articles, photos, drawings, graphics, rich media, applications, programs and other content owned by a party other than iSpring (“Third Party Components”). Any Third Party Components incorporated into or accompanying Licensor’s Products is third parties’ intellectual property and is protected by United States, and international copyright laws and applicable treaties. Licensor has obtained such rights, permissions and consents as are necessary for Licensor to use the Third Party Components in conjunction with the Product as licensed by this Agreement. However, all such Third Party Components incorporated into or accompanying the Product is or may be subject to a separate software licensing agreement containing separate and discrete terms, conditions and restrictions governing Your right to use the Third Party Components. Irrespective of Your acceptance and/or use of the Product, You will not receive or gain any rights, privileges or entitlements in respect of the Third Party Components greater than such rights, privileges or entitlements as Licensor is able to provide to You pursuant to this Agreement (each as may be amended, from time to time). You acknowledge that the License granted under this Agreement only provides You with a right of limited use under the terms and conditions of this Agreement. And You agree and confirm to use the Third Party Components only in conjunction with the Product, as permitted by this Agreement, and as permitted by the more restrictive of any Third Party Components license agreement applicable to Your and/or Licensor’s use of the Third Party Components.
4.3. Applicability to Third Party Components.Licensor makes no representations or warranties and provides no indemnification or replacement covenants of any kind with respect to Third Party Products. Licensor’s sole responsibility as to Third Party Components is to pass through any intellectual property warranties, indemnification and replacement provisions that Licensor receives from the vendors or suppliers of such Third Party Products and which Licensor is allowed to pass on. “Third Party Components” means application software products provided by third party vendors, including operating system and application software with which the Software interfaces and which provides certain functionality essential to the operation of the Software.
4.4. Use of the Content Library by You. The Content Library is incorporated into the Product is Licensor’s intellectual property and is protected by United States, and international copyright laws and applicable treaties. The Licensor hereby grants to You a non-exclusive limited, worldwide, non-transferable license, without rights to sublicense, to Use the Content Library according to the terms and conditions of iSpring Content Library Subscription Agreement for the following permitted uses: to create Your Content for advertising, training, and promotional projects, including printed materials, Content Library packaging, presentations, film and video presentations, commercials, catalogues, brochures, promotional greeting cards and promotional postcards.
Prohibited Uses of the Content Library. Prohibited uses include, but are not limited to, the following: design template applications intended for resale, whether online or not, including, without limitation, website templates, eLearning templates, flash templates, business card templates, electronic greeting card templates, and brochure design templates. You may not offer these templates for a price or for free on a website, blog, or social network.
4.5. Confidential Information. You agree that, unless otherwise specifically provided herein the Product, including the specific design and structure of individual programs and the Product, constitute confidential proprietary information of the Licensor or its suppliers and/or licensors. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party. Furthermore, in addition to or in lieu of You entering the License Key, Licensor reserves the right to implement an activation procedure requiring You in order to enable the full functionality of the Product to connect, through the Product’s interface, to Licensors server and by entering into this Agreement You agree to comply with such online activation procedure. You agree to implement reasonable security measures to protect such confidential information.
5. TERM AND TERMINATION.
5.1. The term of this Agreement (“Term”) shall begin when You purchase or otherwise legally obtain the License for the Product until the Agreement is terminated as provided herein.
5.2. This Agreement may be terminated by a superseding agreement, offered by the Licensor and accepted by You, for the Product, Update or any replacement or modified version of or Upgrade or New Release of the Product and conditioning Your continued use of the Product or such replacement, modified or upgraded version or New Release on Your acceptance of such superseding Agreement.
5.3. The term of this Agreement is effective until the end of a Subscription Term if the Product is licensed under Subscription License. The term of this Agreement shall automatically renew for each additional subscription period as reflected in the License Key and/or applicable invoicing or packaging.
5.4. Without prejudice to any other rights, this Agreement will terminate automatically, if You fail to comply with any of the limitations or other requirements described herein.
5.5. Upon any termination or expiration of this Agreement, You must immediately cease Use of the Product and permanently destroy and/or delete all copies of the Product.
5.6. No Rights Upon Termination. Upon termination of this Agreement, You will no longer be authorized to Use the Product in any way and no refunds (whole or partial) will be granted.
5.7. No Refunds for Termination of Subscription License. To prevent fraudulent behavior and abuse,no refunds will be granted, in whole or in part, after expiration of a Subscription Term or if You choose to terminate Your Subscription License during Your Subscription Term.
5.7.1.No Refunds during Special Offers. You will not receive a refund, in whole or in part, for the licenses purchased by You during Licensor’s special offers.
5.8. Material Terms and Conditions. You specifically agree that each of the terms and conditions of this Section 5 are material and that failure of You to comply with these terms and conditions shall constitute sufficient cause for Licensor to immediately terminate this Agreement and the License granted under this Agreement. The presence of this Section 5.7 shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party hereto.
6.1. No Transfers. Under no circumstances You shallsell, rent, lease, loan, license, sublicense, publish, display, distribute, or otherwise transfer to a third party the Product, any copy or use thereof, in whole or in part, without Licensor's prior written consent, provided that if such non-waivable right is specifically granted to You under applicable law in Your jurisdiction You may transfer Your rights under this Agreement permanently to another person or entity, provided that (a) You also transfer this Agreement, the Product, all accompanying printed materials, and all other software or hardware bundled or pre-installed with the Product, including all copies, Updates and prior versions, to such person or entity; (b) retain no copies, including backups and copies stored on a Client Device; and (c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which You legally purchased a license to the Product. Notwithstanding the foregoing, You may not transfer education, pre-release, or “not for resale” copies of the Product. In no case You may permit third parties to benefit from the Use or functionality of the Product via a timesharing, service bureau or other arrangement, except to the extent such Use is specified in the application price list, purchase order or product packaging for the Product.
6.2. Prohibitions. Except as otherwise specifically provided for in this Agreement, You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, otherwise reverse engineer, or otherwise reduce any party of the Product to human readable form or transfer the licensed Product, or any subset of the licensed Product, nor permit any third party to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law. You may not modify, or create derivative works based upon the Product in whole or in part. Any such unauthorized use shall result in immediate and automatic termination of this Agreement and the License granted hereunder and may result in criminal and/or civil prosecution. Neither Product’s binary code nor source may be used or reverse engineered to re-create the program algorithm, which is proprietary, without written permission of the Licensor. All rights not expressly granted here are reserved by Licensor and/or its suppliers and licensors, as applicable.
6.3. License Key. You may not give, make available, give away, sell or otherwise transfer Your registration License Key or any copy thereof to a third party. Product’s License Key may not be distributed, except as provided herein, outside of the area of legal control of the person or persons who purchased the original License, without written permission of the Licensor. Doing so will result in an infringement of copyright. The Licensor retains the right of claims for compensation in respect of damage which occurred by Your giving away the License Key or registration code contained therein. This claim shall also extend to all costs which the Licensor or its licensors incur in defending themselves.
6.4. Compliance with Law. You agree that in using the Product and in using any report or information derived as a result of using this Product, You will comply with all applicable international, national, state, regional and local laws and regulations, including, without limitation, privacy, copyright, export control and obscenity law.
6.5. No Transfer of Rights. Except as otherwise specifically provided herein, You may not transfer or assign any of the rights granted to You under this Agreement or any of Your obligations pursuant hereto.
6.6. No Reverse Engineering. You acknowledge that the Product is proprietary to the Licensor and constitutes trade secrets of the Licensor. You agree not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the code of the Product in any way.
6.7. No Modification. You agree not to modify or alter the Product in any way. You may not remove or alter any copyright notices or other proprietary notices on any copies of the Product.
6.8.Transfer of the Product. You may move the Product to a different Client Device; such transfer may require You to contact Licensor to effectuate such transfer. After the transfer, You must completely remove the Product from the former Client Device. NOTWITHSTANDING THE FOREGOING, YOU MAY NOT TRANSFER EVALUATION LICENSE PRODUCTS. YOU MAY NOT SUBLICENSE, RENT OR LEASE YOUR RIGHTS IN THE PRODUCT OR AUTHORIZE ANY PORTION OF THE PRODUCT TO BE COPIED EXCEPT AS MAY BE EXPRESSLY PERMITTED IN THIS AGREEMENT.
6.9. Material Terms and Conditions. You specifically agree that each of the terms and conditions of this Section 6 are material and that failure of You to comply with these terms and conditions shall constitute sufficient cause for Licensor to immediately terminate this Agreement and the License granted under this Agreement. The presence of this Section 6 shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party hereto.
7. ADDITIONAL PROTECTION MEASURES. Solely for the purpose of preventing unlicensed use of the Product, the Software may install on Your Client Device technological measures that are designed to prevent unlicensed use, and the Licensor may use this technology to confirm that You have a licensed copy of the Product. The update of these technological measures may occur through the installation of the Updates.
8. RIGHT TO AUDIT. To prevent fraud Use of the Products and support services,Licensor, without written notice to users during Licensor’s business hours may examine and/or audit the Use of Licensor’s Products by any user. If any examination or audit should reveal unlicensed Use of the Product and support services by either an individual or an entity, then Licensor reserves the right to reset the number of activations, demand such user to deactivate the Product and stop providing such users with support services for the Products, until such users obtain a license for the Product.
9.1. Customer Remedies. The Licensor and its suppliers’ entire liability and Your exclusive remedy for any breach of the foregoing warranty shall be at the Licensor’s option: (a) return of the purchase price paid for the license, if any, or (b) correction of the defects, “bugs” or errors within reasonable period of time.
9.2. NO WARRANTIES. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, THE PRODUCT AND SUPPORT SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY WHATSOEVER AND THE LICENSOR MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, REGARDING OR RELATING TO THE PRODUCT OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO YOU PURSUANT TO THIS AGREEMENT OR OTHERWISE. YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT. THE LICENSOR MAKES NO WARRANTY THAT THE PRODUCT AND SUPPORT SERVICES WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT AND THE ACCOMPANYING WRITTEN MATERIALS OR THE USE THEREOF. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU HEREBY ACKNOWLEDGE THAT THE PRODUCT AND SUPPORT SERVICES MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES. THEREFORE, THE LICENSOR EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE. THE LICENSOR DISCLAIMS ANY AND ALL LIABILITY FOR THE LOSS OF DATA DURING ANY COMMUNICATIONS AND ANY LIABILITY ARISING FROM OR RELATED TO ANY FAILURE BY THE LICENSOR TO TRANSMIT ACCURATE OR COMPLETE INFORMATION TO YOU.
9.3. LIMITED LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE PRODUCT AND THE INFORMATION CONTAINED IN OR COMPILED BY THE PRODUCT, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY THE LICENSOR OR A THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LICENSOR OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, COST OF PROCURING SUPPORT SERVICES, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, OR THE INCOMPATIBILITY OF THE PRODUCT WITH ANY HARDWARE, SOFTWARE OR USAGE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE LICENSE FEE PAID BY YOU TO LICENSOR. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You will, at Your own expense, indemnify and hold Licensor, and its affiliates and suppliers, 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 Product by You, any party related to You, or any party acting upon Your authorization in a manner that is not expressly authorized by this Agreement.
11. U.S. Government-Restricted Rights.
11.1. Notice to U.S. Government End Users. The Product and accompanying Documentation are deemed to be “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” respectively, 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, including any use, modification, reproduction, release, performance, display or disclosure of the Product and accompanying Documentation, 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.
11.2. Export Restrictions. You acknowledge and agree that the Product may be subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations of the United States (the “Acts”). You agree and certify that neither the Product nor any direct product thereof is being or will be used for any purpose prohibited by the Acts. You may not Use, download, export, or re-export the Product (a) into, or to a national or resident of, any country to which the United States has embargoed goods, or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or Using the Product, You are representing and warranting that You are not located in, under the control of, or a national or resident of any such country or on any such list. You acknowledge that it is Your sole responsibility to comply with any and all government export and other applicable laws and that the Licensor has no further responsibility for such after the initial license to You. You warrant and represent that neither the U.S. Commerce Department, Bureau of Export Administration nor any other U.S. federal agency has suspended, revoked or denied Your export privileges.
12. PERSONAL DATA.
12.1. Processing of Personal Data.
a) By entering into this Agreement, You agree that the Licensor process Your personal data during or in connection with your use of the Products, gathered during any Trial Period or as part of the Product Support Services provided to You, including Your name, email address and phone number. The Licensor employs other companies and individuals to perform certain functions on its behalf. Examples include delivering packages, sending e-mail, analyzing data, providing marketing assistance, and providing customer service. They have access to personal information needed to perform their functions, but may not use it for other purposes.
b) Licensor collects information about You and determine the purposes and means of processing Your personal data in its role as data controller when You order the Products or otherwise provide it directly to Licensor. You hereby instruct Licensor to process the personal data that you share with Licensor in order to provide you with and improve the Products (hereinafter "Personal Data"). You acknowledge receipt of and agree to the Licensor’s privacy statement, which is made available to You in connection with installation and is set forth in full at https://www.ispringsolutions.com/company/policy/privacy.html.
12.2. Security. Licensor shall maintain appropriate technical and organizational measures for the protection of the security, confidentiality, and integrity of Personal Data (including protection against unauthorized or unlawful processing and against accidental or unlawful destruction, loss, or alteration or damage, unauthorized disclosure of, or access to Personal Data). Licensor regularly monitors compliance with these measures. Licensor will not materially decrease the overall security of the Products during its provision of the Products pursuant to this Agreement. Licensor shall ensure that persons authorized to carry out processing have committed themselves to confidentiality or are under the appropriate statutory obligation of confidentiality.
12.3. Incident Notification. Licensor shall notify You without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored, or otherwise processed by Licensor or its sub-processors of which Licensor becomes aware (a "Data Incident"). Licensor shall make reasonable efforts to identify the cause of such Data Incident and take steps as Licensor deems necessary and reasonable in order to remediate the cause of such a Data Incident to the extent the remediation is within Licensor's reasonable control. The obligations herein shall not apply to incidents that are caused by You.
12.4. Return and Deletion. Upon your written request Licensor will return or delete Personal Data that You (and no other customer) made available to Licensor. Licensor may also refuse such requests where returning or deleting such Personal Data would be prohibited by applicable law, or where Licensor must retain such Personal Data due to legal obligations, to protect its rights or those of a third party, or as required by Licensor for processing pursuant to a legitimate interest as documented by Licensor.
For purposes of facilitating transfers of personal data from the EEA and Switzerland to the United States, Licensor uses controller to processor model contractual clauses. Where applicable, You agree to enter into processor model contractual clauses with Licensor, which are available to You on written request.
13.1. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia without reference to conflicts of law rules and principles. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to the Products in any competent jurisdiction. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. The federal and state courts within the Commonwealth of Virginia shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement.
13.2. Period for Bringing Actions. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
13.3. Publicity. The parties shall work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters. In addition, neither party shall issue such publicity and general marketing communications concerning their relationship without the prior written consent of the other party (not to be unreasonably withheld or delayed) and neither party shall disclose the terms of this Agreement to any third party other than its outside counsel, auditors, and financial and technical advisors, except as required by law), provided that, Licensor may mention You as a customer on its website and general marketing communications.
13.4. Entire Agreement; Severability; No Waiver. This Agreement is the entire agreement between You and Licensor and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the Product or to subject matter of this Agreement. You acknowledge that You have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the maximum extent permitted by law or equity while preserving, to the fullest extent possible, its original intent. No waiver of any provision or condition herein shall be valid unless in writing and signed by You and an authorized representative of Licensor provided that no waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach. Licensor’s failure to insist upon or enforce strict performance of any provision of this Agreement or any right shall not be construed as a waiver of any such provision or right. 13.5.Injunctive Relief. You agree that a breach of this EULA adversely affecting Licensor’s proprietary rights in the Software may cause irreparable injury to Licensor for which monetary damages would not be an adequate remedy and Licensor shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law.