User License Agreement: SoftShield
SOFTSHIELD, LLC
USER’S LICENSE AGREEMENT
IMPORTANT INFORMATION - PLEASE READ THIS AGREEMENT CAREFULLY BEFORE OPENING THE PACKAGE AND/OR USING THE CONTENTS THEREOF AND/OR BEFORE DOWNLOADING OR INSTALLING THE SOFTWARE PROGRAM. ALL ORDERS FOR AND USE OF SOFTSHIELD AND/OR SOFTSHIELD RELATED PRODUCTS (hereinafter “Product”) SUPPLIED BY SOFTSHIELD, LLC (or any of its affiliates - either of them referred to as “SOFTSHIELD”) ARE AND SHALL BE, SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
BY OPENING THE PACKAGE CONTAINING THE PRODUCTS AND/OR BY DOWNLOADING THE SOFTWARE (as defined hereunder) AND/OR BY INSTALLING THE SOFTWARE ON YOUR COMPUTER AND/OR BY USING THE PRODUCT, YOU ARE ACCEPTING THIS AGREEMENT AND AGREEING TO BE BOUND BY ITS TERMS AND CONDITIONS.
IF YOU DO NOT AGREE TO THIS AGREEMENT OR ARE NOT WILLING TO BE BOUND BY IT, DO NOT OPEN THE PACKAGE AND/OR DOWNLOAD AND/OR INSTALL THE SOFTWARE AND PROMPTLY (at least within 7 days from the date you received this package) RETURN THE PRODUCTS TO SOFTSHIELD, ERASE THE SOFTWARE, AND ANY PART THEREOF, FROM YOUR COMPUTER AND DO NOT USE IT IN ANY MANNER WHATSOEVER. UPON RETURNING THE PRODUCT WITH A COPY OF THE SALES RECEIPT TO SOFTSHIELD YOU WILL RECEIVE A REFUND IF RETURNED WITHIN 14 DAYS FROM DATE OF PURCHASE.
1. Title & Ownership. THIS IS A LICENSE AGREEMENT AND NOT AN AGREEMENT FOR SALE. The software component of the Product, including any revisions, corrections, modifications, enhancements, derivative works, updates and/or upgrades thereto, (hereinafter in whole or any part thereof defined as: "Software"), and the related documentation, ARE NOT FOR SALE and are and shall remain in SOFTSHIELD’s sole property. All intellectual property rights (including, without limitation, copyrights, trade secrets, trademarks, etc.) evidenced by or embodied in and/or attached/connected/related to the Product, (including, without limitation, the Software code and the work product performed in accordance with Section 2 hereunder) are and shall be owned solely by SOFTSHIELD. This Agreement does not convey to you an interest in or to the Software but only a limited right of use revocable in accordance with the terms of this Agreement. Nothing in this Agreement constitutes a waiver of SOFTSHIELD’s intellectual property rights under any law.
2. License. Subject to payment of applicable license fees, SOFTSHIELD hereby grants to you, and you accept, a personal, nonexclusive and fully revocable limited license to use the Software, in executable form only and only according to the terms of this Agreement: (i) you may install the Software and use it on computers located in your place of business, as described in SOFTSHIELD’s related documentation; (ii) you may merge and link the Software into your computer programs; however, any portion of the Software merged into another computer program shall be deemed as derivative work and will continue to be subject to the terms of this Agreement; and (iii) you are permitted to make a reasonable number of copies - but not more than three (3) - for backup purposes. The Software shall not be used for any other purposes.
3. Sub-Licensing. After merging the Software in your computer program(s) according to section 2 above, you may sub-license, pursuant to the terms of this Agreement, the merged Software and resell the hardware components of the Product which you purchased from SOFTSHIELD, to distributors and/or users. Preceding such a sale and sub-licensing, you shall incorporate by reference in your contracts with such distributors and/or users, and otherwise provide for all distributors and/or users to be bound by, the warranties, disclaimers, and license terms specified by SOFTSHIELD in this Agreement.
4. Prohibited Uses. Except as specifically permitted in Sections 1,2 and 3 above, you agree not to (i) use, modify, merge or sub-license the Software or any other of SOFTSHIELD’s products except as expressly authorized in this Agreement and in the Developer’s Guide; and (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share your rights under this License with/to anyone else; and (iii) modify, disassemble, decompile, reverse engineer, revise or enhance the Software or attempt to discover the Software’s source code; and (iv) place the Software onto a server so that it is accessible via a public network; and (v) use any back-up or archival copies of the Software (or allow someone else to use such copies) for any purpose other than to replace an original copy if it is destroyed or becomes defective. If you are a member of the European Union, this Agreement does not affect your rights under any legislation implementing the EC Council Directive on the Legal Protection of Computer Programs. If you seek any information within the meaning of that Directive you should initially approach SOFTSHIELD.
5. Limited Warranty. SOFTSHIELD warrants, for your benefit alone, that (i) the Software, when and as delivered to you, and for a period of three (3) months after the date of delivery to you, will perform in substantial compliance with the Developer’s Guide, provided that it is used on the computer hardware and with the operating system for which it was designed; and (ii) that the HARDWARE key for a period of twelve (12) months after the date of delivery to you, will be substantially free from significant defects in materials and workmanship.
6. Warranty Disclaimer. SOFTSHIELD DOES NOT WARRANT THAT ANY OF ITS PRODUCT(S) WILL MEET YOUR REQUIRMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE EXTENT ALLOWED BY LAW, SOFTSHIELD EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES NOT STATED HERE AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO SOFTSHIELD’S DEALER, DISTRIBUTOR, RESELLER, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. If any modifications are made to the Software or to any other part of the Product by you during the warranty period; if the media and the Product is subjected to accident, abuse, or improper use; or if you violate any of the terms of this Agreement, then the warranty in Section 5 above, shall immediately be terminated. The warranty shall not apply if the Software is used on or in conjunction with hardware or program other than the unmodified version of hardware and program with which the Software was designed to be used as described in the SOFTSHIELD Developer’s Guide.
7. Limitation of Remedies. In the event of a breach of the warranty set forth above, SOFTSHIELD's sole obligation shall be, at SOFTSHIELD's sole discretion: (i) to replace or repair the Product, or component thereof, that does not meet the foregoing limited warranty, free of charge; (ii) to refund the price paid by you for the Product, or component thereof. Any replacement or repaired component will be warranted for the remainder of the original warranty period or 30 days, whichever is longer. Warranty claims must be made in writing during the warranty period and within seven (7) days of the observation of the defect accompanied by evidence satisfactory to SOFTSHIELD. All Products should be returned to the distributor from which they were purchased (if not purchased directly from SOFTSHIELD) and shall be shipped by the returning party with freight and insurance paid. The Product or component thereof must be returned with a copy of your receipt.
8. Exclusion Of Consequential Damages. The parties acknowledge, that the Product is inherently complex and may not be completely free of errors. SOFTSHIELD SHALL NOT BE LIABLE (WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) TO YOU, OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, YOUR DISTRIBUTORS AND USERS OF YOUR SOFTWARE PROGRAM) FOR ANY LOSS OR DAMAGE (INCLUDING INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES), INCLUDING, WITHOUT LIMITATION, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATA OR DOCUMENTATION, SUFFERED BY ANY PERSON, ARISING FROM AND/OR RELATED WITH AND/OR CONNECTED TO ANY USE OF THE SOFTWARE AND/OR ANY COMPONENT OF THE PRODUCT, EVEN IF SOFTSHIELD IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Limitation Of Liability. IN NO EVENT SHALL SOFTSHIELD’S TOTAL MONETARY OBLIGATION AND LIABILITY, UNDER ANY CLAIM FOR ANY CAUSES OF ACTION PURSUANT TO THIS AGREEMENT, EXCEED THE PAYMENTS MADE BY YOU TO SOFTSHIELD FOR THE PRODUCT/S THAT GAVE RISE TO THE ACTION OR CLAIM, AND IF NO SUCH PRODUCT/S ARE SO APPLICABLE THEN SOFTSHIELD’S LIABILITY SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY YOU TO SOFTSHIELD HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT..
10. No Other Warranties. Except as specifically provided herein, SOFTSHIELD makes no warranty or representation, either express or implied, with respect to its products as described in the preamble of this agreement, including its quality, performance, merchantability or fitness for a particular purpose.
11. Termination. Your failure to comply with the terms of this Agreement shall terminate your license and this Agreement. Upon termination of this Agreement by SOFTSHIELD: (i) the license granted to you in this Agreement shall expire and you, upon termination, shall discontinue all further use (including without limitation sub-licensing) of the Software and other licensed Product(s); and (ii) you shall promptly return to SOFTSHIELD all tangible property representing SOFTSHIELD’s intellectual property rights and all copies thereof and/or shall erase/delete any such information held by it in electronic form. Sections 1, 4, 6, 7, 8, 9, 10, 11 and 12 shall survive any termination of this Agreement.
12. Governing Law & Jurisdiction. This Agreement shall be construed and governed in accordance with the laws of Nevada, USA and only the competent courts of Nevada shall have jurisdiction in any conflict or dispute arising out of this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. 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.
13. Dispute Resolution. The Parties agree that if any dispute arises and such deficiency is not corrected to the satisfaction of the aggrieved Party within a 30-day period, either Party may demand and require mandatory mediation (to be hosted in Carson City, Nevada, USA), the expense for which is shared equally by both Parties.
In the event mediation is unsuccessful in producing a resolution to the dispute, The Parties agree that the controversy or claim arising out of or relating to This Agreement shall be settled by mandatory, private, and binding arbitration, conducted by the American Arbitration Association (to be hosted in Carson City, Nevada, USA), with both Parties sharing equally the upfront fees and costs, and prevailing Party recovering its share of those fees, and costs from the losing Party.
Arbitration will be triggered by a notice from the aggrieved Party and will be heard not later than 90 (ninety) days after the receipt of the notice by the other Party.
14. Third Party Software. If the Product contains any software provided by third parties, such third party’s software is provided “As Is” without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties.
15. Miscellaneous. This Agreement represents the complete agreement concerning the license hereunder and the subject matter hereof and may be amended only by a written agreement executed by both parties. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.
I HAVE READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF THE TERMS.