THIS END USER LICENSE AGREEMENT, including the Order Form which by this reference is incorporated herein (this “Agreement”), is a binding agreement between Guardia One LLC (”Company”) and the person or entity who has integrated the software service with its webstore or who is identified on the Order Form as the licensee of the Software (”Licensee”).
COMPANY PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON OR CHECKING THE “ACCEPT” BOX ON THE ORDER FORM (A) LICENSEE ACCEPTS THIS AGREEMENT AND AGREES THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS, AND (B) YOU REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. LICENSEE UNDERSTANDS THAT COMPANY PROVIDES SOFTWARE AS A SERVICE AND DOES NOT PROVIDE INSURANCE SERVICES.
IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, COMPANY WILL NOT AND DOES NOT LICENSE THE SOFTWARE OR DOCUMENTATION TO LICENSEE AND LICENSEE MUST NOT DOWNLOAD, INSTALL, INTEGRATE THE SERVICE WITH THE LICENSEE WEB STORE, OR USE THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF COMPANY’S SOFTWARE.
DEFINITIONS. For purposes of this Agreement, the following terms have the following meanings:
“Agreement” has the meaning set forth in the preamble.
“Company” has the meaning set forth in the preamble.
“Device” has the meaning set forth in Section 2.
“Documentation” means user manuals, technical manuals, and any other materials provided by Company, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Licensee” has the meaning set forth in the preamble.
“License Fees” means the license fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.
“Order Form” means the order form filled out and submitted by or on behalf of Licensee, and accepted by Company, for Licensee’s purchase of the license for the Software granted under this Agreement.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Software” means the software application for which Licensee is purchasing a license, or the service provided by the software, as expressly set forth in the Order Form.
“Term” has the meaning set forth in Section 8.
“Third Party” means any Person other than Licensee or Company.
“Update” has the meaning set forth in Section 7.
LICENSE GRANT AND SCOPE. Subject to and conditioned upon Licensee’s full and timely payment of the Licensee Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement and the Order Form, Company hereby grants Licensee one (1) limited, non-exclusive, non-transferable, non-sublicensable license during the Term to use the Software and Documentation for commercial use on a computing device or platform owned or leased or otherwise controlled by Licensee (the “Device”).
USE RESTRICTIONS. Licensee shall not under any circumstances directly or indirectly: (a) use the Software or Documentation beyond the scope of the license granted under Section 2; (b) copy the Software or Documentation in whole or in part, except as expressly permitted by this license; © modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation; (d) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (e) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software or Documentation, including any copy thereof; (f) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software or Documentation or any features or functionality of the Software, to any third party for any reason, including by making the Software available on a network where it is capable of being accessed by more than one device at any time; (g) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Software; (h) use the Software or Documentation in violation of any law, regulation, or rule; or (i) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Company’s commercial disadvantage. The Software may contain and Company may activate and use, without any resulting obligation, liability, or penalty to Licensee or any Third Party, a disabling device or encoded commands or other security features designed to prevent unauthorized use, including use prohibited under this Section 3 and use or attempted use of the Software without having paid the required License Fees. Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features
RESPONSIBILITY FOR USE OF SOFTWARE. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its authorized users or by any other Person to whom Licensee or an authorized user may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
INTELLECTUAL PROPERTY RIGHTS. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest whatsoever in the Software or Documentation under this Agreement, or any other rights thereto other than to use the Software and Documentation in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement and applicable law. Company and its licensors and service providers reserve and shall retain its/their entire right, title and interest in and to the Software and Documentation, and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Company if Licensee becomes aware of any infringement of the Company’s Intellectual Property Rights in the Software and fully cooperate with Company in any legal action taken by Company to enforce its Intellectual Property Rights.
MAINTENANCE AND SUPPORT. Except as otherwise set forth in the Order Form, Company has no obligation under this Agreement to provide any maintenance, support or other services relating to the Software. Licensee is solely responsible for taking appropriate measures to back up the Device and data and all other necessary measures to prevent any file or data loss.
SOFTWARE UPDATES. Company may from time to time provide Software updates, upgrades, new features, bug fixes, patches, and other error corrections (collectively, “Updates”) as Company makes generally available free of charge to all licensees of the Software then entitled to maintenance and support services. Company may develop and provide such Updates in its sole discretion, and Licensee agrees that Company has no obligation to develop any Updates at all or for particular issues. In the event Company provides any Updates, based on the Device settings, when the Device is connected to the internet either: (a) the Software will automatically download and install all available Updates; or (b) Licensee may receive notice of or be prompted to download and install available Updates. Licensee agrees to promptly download and install all Updates and acknowledge and agree that the Software or portions thereof may not properly operate should Licensee fail to do so. Company has no obligation to provide Updates via any other media. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement and applicable law. Updates do not include any new version or new release of the Software that Company may issue as a separate or new product, and Company may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.
TERM AND TERMINATION. This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until earlier terminated as set forth herein (the “Term”). Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation. Company may terminate this Agreement at any time if Licensee breaches this Agreement. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall immediately cease using and delete and destroy all copies of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund. No expiration or termination shall limit any of Company’s rights or remedies at law or in equity.
COLLECTION AND USE OF INFORMATION. Licensee acknowledges that Company may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used. Licensee agrees that the Company may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to improving the performance of the Software or developing Updates, and verifying Licensee’s compliance with the terms of this Agreement and enforcing the Company’s rights, including all Intellectual Property Rights in and to the Software.
DISCLAIMER OF INSURANCE. THE SOFTWARE IS NOT AN INSURANCE PRODUCT. COMPANY IS NOT AN INSURANCE PROVIDER AND IS NOT LICENSED OR AUTHORIZED TO SELL OR SOLICIT THE SALE OF INSURANCE IN ANY JURISDICTION. THIS AGREEMENT AND THE SOFTWARE DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF THE SALE OF OR AN OFFER TO PURCHASE ANY INSURANCE PRODUCT.
DISCLAIMER OF WARRANTIES. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SOFTWARES, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO LICENSEE.
LIMITATIONS OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO LICENSEE’S USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES;
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE TO COMPANY FOR THE SOFTWARE.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO LICENSEE. IN SUCH INSTANCES, COMPANY MAY BE LIABLE TO LICENSEE (1) WITHOUT LIMITATION FOR DAMAGES LICENSEE HAS INCURRED UNDER OR IN CONNECTION WITH THIS AGREEMENT ONLY IF THE DAMAGE HAS BEEN CAUSED BY THE WILLFUL OR GROSSLY NEGLIGENT ACT OF COMPANY; AND (2) FOR THOSE TYPICAL DAMAGES THAT WERE REASONABLY FORESEEABLE AND WHICH HAVE BEEN CAUSED BY ANY OTHER NEGLIGENT BREACH OF AN ESSENTIAL CONTRACTUAL DUTY BY COMPANY. ANY FURTHER LIABILITY OF COMPANY IS EXCLUDED. THESE AFOREMENTIONED LIMITATIONS APPLY IRRESPECTIVE OF THEIR LEGAL BASIS, IN PARTICULAR WITH REGARD TO ANY PRE-CONTRACTUAL OR AUXILIARY CONTRACTUAL CLAIMS.
NO LIABILITY FOR OPEN SOURCE MATERIALS. THE SOFTWARE MAY CONTAIN “OPEN SOURCE” MATERIALS (E.G., ANY SOFTWARE SUBJECT TO OPEN SOURCE, COPYLEFT, GNU GENERAL PUBLIC LICENSE, LIBRARY GENERAL PUBLIC LICENSE, LESSER GENERAL PUBLIC LICENSE, MOZILLA LICENSE, BERKELEY SOFTWARE DISTRIBUTION LICENSE, OPEN SOURCE INITIATIVE LICENSE, MIT, APACHE OR PUBLIC DOMAIN LICENSES, OR SIMILAR LICENSE). COMPANY MAKES NO WARRANTIES, AND SHALL HAVE NO LIABILITY, DIRECT OR INDIRECT, WHATSOEVER WITH RESPECT TO OPEN SOURCE MATERIALS CONTAINED IN THE SOFTWARE.
INDEMNIFICATION. Licensee agrees to indemnify, defend and hold harmless Company and its affiliates and its/their directors, officers, members, managers, employees, shareholders, agents, representatives, attorneys, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to Licensee’s use or misuse of the Software or Licensee’s breach of this Agreement or applicable law.
EXPORT REGULATION. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or Documentation available outside the US.
GOVERNING LAW. This Agreement is governed by and construed in accordance with the internal laws of the State of Utah, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Software shall be instituted exclusively in the federal courts of the United States located in Salt Lake City, Utah, or the courts of the State of Utah located in Provo, Utah; provided, however, that this provision shall not restrict Company’s right to bring any suit, action or proceeding against Licensee in the jurisdiction where Licensee is located or any other relevant jurisdiction. Licensee waives any and all objections to the exercise of jurisdiction over Licensee by such courts and to venue in such courts. This Agreement specifically excludes the United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such ‘Convention’, if otherwise applicable.
LIMITATION OF TIME TO FILE CLAIMS. ANY CAUSE OF ACTION OR CLAIM LICENSEE MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE OR DOCUMENTATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
SEVERABILITY; HEADINGS. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable but only to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties, and all other provisions of this Agreement will continue in full force and effect. The headings in this Agreement are for convenience only and shall not limit or otherwise affect the meaning hereof.
WAIVER. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
SURVIVAL. The rights and obligations of the parties set forth in Section 4 (Responsibility for Use), Section 5 (Intellectual Property Rights), Section 10 (Disclaimer of Insurance), Section 11 (Disclaimer of Warranties), Section 12 (Limitations of Liability), Section 13 (No Liability for Open Source Materials), Section 14 (Indemnification), Section 16 (Governing Law), Section 17 (Limitation of Time to File Claim), Section 18 (Severability), Section 19 (Wavier), this Section 20 (Survival), and Section 21 (Entire Agreement), and any right, obligation or required performance of the parties in this Agreement which by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between Licensee and Company with respect to the Software and Documentation and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Software or Documentation. No modifications or amendments to this Agreement will be binding upon Company unless made in writing and duly executed by Licensee and an authorized representative of Company.