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END USER LICENSE AGREEMENT
PLEASE READ CAREFULLY EACH OF THE FOLLOWING TERMS AND CONDITIONS. THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) IS AN AGREEMENT BETWEEN YOU (AN INDIVIDUAL ONLY, “YOU” AND “LICENSEE”) AND TRUSTTONE COMMUNICATIONS, INC. (“LICENSOR”) AND GOVERNS THE USE OF THE TRUSTTONE PRIVATEMAIL SOFTWARE AND RELATED DOCUMENTATION (THE “SOFTWARE”).
BY CLICKING THE “ACCEPT” BUTTON AND INSTALLING OR USING THE SOFTWARE, YOU ARE CONSENTING TO BECOMING A PARTY TO AND BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU MUST SELECT THE “NON-ACCEPT” BUTTON AND MUST NOT DOWNLOAD OR USE THE SOFTWARE.
Subject to the terms and conditions of this Agreement, Licensor grants to Licensee a personal, non-transferable, non-sublicensable and non-exclusive license to use the Software, including any accompanying documentation (“Documentation”), in executable code form only, on one computer only and for Licensee’s personal use only.
Licensee shall not (a) copy, distribute, transfer, loan or otherwise provide the Software to any third party, (b) disassemble, decompile or reverse engineer the Software, (c) permit any third party to use the Software, (d) process or permit to be processed the data of any third party, (e) use the Software in the operation of a service bureau or otherwise for profit, (f) modify or create any derivative works of the Software or documentation, including translation or localization, or (g) remove or alter any trademark, logo, copyright or other proprietary notice, legend, symbol or label in or on the Software.
The Software is protected by copyright laws of the United States and international copyright treaty provisions and other legally enforceable proprietary rights. The Software, or any portion thereof, may not be reproduced, rented, leased or in any other manner redistributed, in whole or in part, without the prior written consent of Licensor.
Except for the license expressly granted herein, Licensee acknowledges and agrees that Licensor exclusively owns and retains all right, title and interest in and to the Software, including all intellectual property rights therein. The limited license rights herein confers no title or ownership in the Software to Licensee.
LICENSOR WARRANTS THAT, FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF ELECTRONIC TRANSMISSION TO LICENSEE, THE UNMODIFIED SOFTWARE UNDER NORMAL USE WILL PERFORM SUBSTANTIALLY IN CONFORMANCE WITH THE DOCUMENTATION. LICENSOR’S ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT LICENSOR’S OPTION, TO CORRECT OR REPLACE THE SOFTWARE OR TO TERMINATE THIS AGREEMENT.
EXCEPT AS PROVIDED IN THE PRECEDING PARAGRAPH, THE SOFTWARE IS LICENSED TO LICENSEE “AS IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL LICENSOR OR ITS SUPPLIERS, DISTRIBUTORS, DEALERS OR EMPLOYEES BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR BE LIABLE, UNDER ANY THEORY OF LIABILITY, FOR ANY DAMAGES IN EXCESS OF THE TOTAL AMOUNT PAID BY LICENSEE TO LICENSOR HEREUNDER. THE PARTIES ACKNOWLEDGE THAT THE FOREGOING IS A REASONABLE ALLOCATION OF RISK AND LICENSOR WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE PROVISIONS OF THIS PARAGRAPH.
This Agreement is effective until it is terminated. The Agreement will terminate immediately without notice from Licensor if Licensee fails to comply with any provision of this Agreement. Licensee may terminate this Agreement at any time by destroying the Software and all backup copies thereof. Immediately upon any termination hereunder, Licensee shall destroy the Software and all backup copies thereof and irretrievably erase the Software, and all portions thereof, from all computer memories and storage devices within Licensee’s possession or control.
Government Use. The Software is a "commercial item," as the term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.
High Risk Activities
The Software is not authorized for use as a “Critical Component” in “Life Support Devices or Systems” or for use in aviation, nuclear or any other inherently dangerous application without the express written approval of Licensor. “Life Support Devices or Systems” are those which are intended to support or sustain life and whose failure to perform can reasonably be expected to result in a significant injury to the user. “Critical Components” are those components whose failure to perform can reasonably be expected to cause failure of a Life Support Device or System or affect its safety or effectiveness.
Licensee agrees to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Software or any direct Software thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. United States export regulations may be found at 15 C.F.R. part 700-799 and 22 C.F.R. Part 120. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Software from the U.S. Licensee shall not download or otherwise export or re-export the Software or the underlying information or technology (a) into Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions covering the Software, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (b) to anyone on the U.S Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Table of Denial Orders.
If the Software is identified as being not-for-export (for example, on the media or in the installation process), then, unless Licensee has an exemption from the United States government, the following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN CITIZENS, THE SOFTWARE AND ANY UNDERLYING ENCRYPTION TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR “FOREIGN PERSON” AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. LICENSEE AGREES TO THE FOREGOING AND WARRANTS THAT IT IS NOT A “FOREIGN PERSON” OR UNDER THE CONTROL OF A “FOREIGN PERSON.”
This Agreement shall be governed and construed under the laws of the State of California, excluding its conflict of laws provisions. Any judicial action or proceeding arising hereunder or relating hereto shall be brought in, and the parties hereby consent to, the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California. The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
Licensee shall not assign or delegate this Agreement, or any of its rights or duties hereunder, directly, indirectly, by operation of law or otherwise, and any such purported assignment or delegation shall be void and of no force or effect. No alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement shall be valid or binding on either party unless mutually assented to in writing by both parties. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or subject breach thereof. If, for any reason, a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. The terms and conditions herein contained constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any previous and contemporaneous agreements, communications and understandings, whether oral or written, between the parties hereto.
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