PLEASE READ CAREFULLY: THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND/OR YOUR ORGANIZATION (“YOU”), AND SECURELINK, INC. (“SECURELINK”). USE OF THE SECURELINK SOFTWARE, INCLUDING WITHOUT LIMITATION ALL ASSOCIATED DOCUMENTATION, IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
BY INSTALLING THE SOFTWARE, BREAKING THE SEAL ON ANY SOFTWARE MEDIA PACKAGE, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT.
All questions concerning this agreement should be directed to SecureLink, Inc., 11402 Bee Cave Road Austin, TX, 78738.
1. Definitions. “Software” means the SecureLink software provided to you by SecureLink in connection with this Agreement, in object code format only, as such software is updated from time-to-time. “Documentation” means the documentation, in either electronic or printed format, provided with or relating to the Software, if any. “Use” means internally storing, loading, installing, executing, using, or displaying. “Authorized Personnel” means an employee or authorized independent contractor of your company.
2. Deliverables. All Software and Documentation are included as shipped or made available for download by SecureLink or an authorized reseller. This Agreement accompanies the Software.
3. Software License. Subject to your payment of all applicable fees, SecureLink grants to you a personal, non-exclusive, non-transferable, non-sublicensable, restricted license to Use one (1) copy of the Software on one computer solely in accordance with the Documentation and for the Software’s intended purpose. You may make a reasonable number of copies of the Software solely for archival purposes. Only Authorized Personnel may Use the Software. SecureLink reserves all rights in the Software not expressly granted to you in this Agreement.
4. Restrictions. You shall not, and shall not permit any third party to: (a) except as expressly set forth in this Agreement, use, copy, modify, translate, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, deliver, give away, disseminate or otherwise transfer the Software or Documentation; (b) use the Software in a service bureau or otherwise for the benefit of third parties; (c) remove from the Software or Documentation, or alter, any of the SecureLink or SecureLink’s licensor trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings to the Software or Documentation; (d) decrypt, attempt to decrypt, or engage a third party to decrypt the Software; or (e) derive or attempt to derive the source code of, de-compile, disassemble or reverse engineer the Software by any means. However, where you have other rights under statute that make any portion of the foregoing contractual prohibition void, you agree to provide SecureLink with reasonably detailed information regarding any intended disassembly or de-compilation. The Software is not intended for use in connection with any high-risk activity, including, without limitation, air travel, space travel, fire fighting, police operations, power plant operation, military operations, rescue operations, hospital or medical operations, nuclear facilities or equipment, or the like. You agree not to use or allow the use of the Software for or in connection with any such high-risk activity.
5. Ownership. This license confers no ownership rights to you and is not a sale of any rights in the Software, the Documentation, or the media on which either is recorded or printed. SecureLink shall own and retain ownership of all right, title, and interest in and to (i) the Software and any copies thereof; (ii) the Documentation and any copies thereof; (iii) any ideas, suggestions, or feedback relating to the Software and Documentation (“Feedback”); and (iv) all intellectual property rights embodied within the foregoing (i)-(iii). You hereby irrevocably assign and agree to assign all of your right, title, and interest in and to any Feedback to SecureLink.
6. Confidentiality. The Software and Documentation contain proprietary and confidential information of SecureLink or SecureLink’s licensors as well as trade secrets owned by SecureLink or SecureLink’s licensors. You agree to hold the Software and Documentation in strict confidence and not to use or disclose the Software or Documentation in any way except as expressly permitted hereunder. You agree to protect the Software and Documentation at least to the same extent that you protect your similar confidential information, but in no event less than reasonable care. Only Authorized Personnel may use or have access to the Software and Documentation, and each such person shall have agreed to protect the confidentiality of the Software and Documentation at least to the same degree as does this Agreement.
7. Updates. You understand that SecureLink may update the Software at any time. Such updates may be provided to you in due course, but SecureLink has no obligation to provide such updates to you. You may decide whether to install updates to the Software unless SecureLink expressly notifies you that a particular update is mandatory.
8. Assumption of Operational Costs. You shall assume all responsibility for delivery, installation, and operation of the Software, transaction costs, installation charges, risk of loss, use charges, taxes, transfer charges, and like costs and associated taxes.
9. Disclaimer of Warranties. THE SOFTWARE, DOCUMENTATION AND ANY SUPPORT RELATED THERETO ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, AND SECURELINK AND SECURELINK’S LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, ACCURACY OF DATA, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NEITHER SECURELINK NOR SECURELINK’S LICENSORS SPECIFICALLY WARRANT THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION, BE ERROR-FREE, OR ACHIEVE ANY SPECIFIC RESULTS.
10. Limitation of Liability. NEITHER SECURELINK NOR SECURELINK’S LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, LOST BUSINESS INFORMATION OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. SECURELINK SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THIS AGREEMENT. SECURELINK AND SECURELINK’S LICENSORS’ CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO SECURELINK OR ITS AUTHORIZED RESELLER FOR THE SOFTWARE. THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF SECURELINK’S BARGAIN HEREUNDER, AND YOU ACKNOWLEDGE THAT SECURELINK WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE TO YOU ABSENT SUCH LIMITATIONS. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
11. Jurisdictions Preventing Limitation or Exclusion of Warranty or Liability. Since some states do not allow certain limitations or exclusions of warranties or liability, some or all of the limitations and exclusions set forth in Sections 9 and 10 above may be held unenforceable as applied to you. In such cases, SecureLink’s liability shall be limited to the greatest extent permitted under applicable law.
12. Export. This Agreement is expressly made subject to all applicable export or import laws, regulations, orders, or other restrictions. Notwithstanding anything contained in this Agreement to the contrary, you shall not export or import, directly or indirectly, any Software or information pertaining thereto to or from any country to which such export or import is restricted or prohibited or as to which such government or any agency thereof requires a license or other governmental approval at the time of export or import without first obtaining such license or approval. Furthermore, you agree to cooperate as requested by SecureLink to insure compliance with any such export or import restrictions. You will hold harmless and defend, at SecureLink’s option, SecureLink from any third party claim against SecureLink arising from your failure to comply with this section.
13. Government Users. If you are a branch or agency of the United States Government or a contractor thereto, the following provision applies. The Software and Documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policies set forth in 48 C.F.R. 12.212; or (ii) for acquisition on behalf of the department of defense consistent with the policies set for the in 48 C.F.R. 227.7202-1 (Aug. 1995) and 227.7202-3 (Aug. 1995).
14. Term and Termination. This Agreement is effective upon installation of the Software, and shall remain in effect in perpetuity unless terminated in accordance with this section. The Agreement will automatically terminate upon your failure to comply with any term or condition of this Agreement. Upon termination, (i) you shall cease all use of the Software, (ii) you shall either return to SecureLink or destroy both the Software and the Documentation together with any copies thereof; and (iii) all terms and conditions of this Agreement shall cease, except for Sections 1 (Definitions), 4 (Restrictions), 5 (Ownership), 6 (Confidentiality), 9 (Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Jurisdictions Preventing Limitations), 14 (Term and Termination), and 15 (General) which shall survive any termination of this Agreement.
15. General. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas, USA, without regard to any principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed. All disputes arising under this Agreement shall be brought exclusively in a federal or state court located in Travis County, Texas. You consent to the personal jurisdiction of such courts and hereby waive any objection to venue of such courts. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such right or provision with respect to any subsequent breach. No terms, provisions, or conditions of any purchase order, acknowledgement, check, or other business form that you may use in connection with the acquisition or licensing of the Software will have any effect on the rights, duties, or obligations of the parties under this Agreement, regardless of any failure of SecureLink to object to such terms, provisions, or conditions. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous discussions, representations, and proposals, whether in writing or oral, with respect to the subject matter of this Agreement. This Agreement may not be amended or modified in any respect unless approved in writing and signed by a duly authorized representative of the respective parties. Your rights under this Agreement may not be transferred or assigned without the prior express written consent of SecureLink, and any such attempted assignment shall be void. SecureLink may assign this Agreement in its discretion.