SOFTWARE
LICENSE AGREEMENT
BEFORE YOU CLICK ON THE “I AGREE” BUTTON OR USE ANY OF THE
SOFTWARE SUPPLIED TO YOU BY SANDBOXIE HOLDINGS LLC (“SBH”), CAREFULLY READ ALL
THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT (“AGREEMENT”). BY CLICKING
ON THE “I AGREE” BUTTON OR USING SBH’S SOFTWARE YOU ARE ACKNOWLEDGING THAT YOU
AND YOUR ORGANIZATION (“LICENSEE”) ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF
YOU ARE USING SBH’S PRODUCTS FOR THE FIRST TIME, AND YOU DO NOT AGREE TO ALL OF
THE TERMS OF THIS AGREEMENT, CLICK THE "I DON’T AGREE" BUTTON AND DO
NOT USE ANY OF THE PRODUCTS. IF YOU ARE THE FIRST MEMBER OF YOUR ORGANIZATION
TO ACCEPT THE TERMS OF THIS AGREEMENT, YOU WARRANT AND REPRESENT TO SBH THAT
YOU ARE DULY AUTHORIZED TO AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF
YOUR ORGANIZATION AND TO BIND YOUR ORGANIZATION TO ITS TERMS. YOU AGREE THAT
THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY
YOU. THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE DATE IT IS FIRST ACCEPTED OR
ANY SBH PRODUCTS OR RELATED SERVICES ARE USED BY THE LICENSEE (“EFFECTIVE
DATE”).
TERMS
AND CONDITIONS
DEFINITIONS As used in this Agreement:
Authorized
Use means use of the Product(s) for which LICENSEE has purchased a license in
the manner specified in the Documentation and as may be separately agreed in writing
between LICENSEE and SBH.
Documentation
means any specification and use documentation made available by SBH to its end
user customers generally with regard to the Products.
Open
Source Software means computer software owned by third parties, licensed under
the terms of various published license agreements and redistributed by SBH to
its customers together with the Products.
Products
means a combination of Software and Open Source Software.
Services
means (a) the SBH maintenance and support services described in Exhibit A
attached to and made part of this Agreement, and (b) any other work to be
performed by SBH for LICENSEE as specified in a LICENSEE purchase order or
other separate agreement accepted by SBH.
Software
means SBH’s browser protection software and all of its components, and other
related SBH software programs, in object code format only. Software includes
without limitation all copies in whole or part, backups, related documentation
and manuals, information relating to such Software, printed listings of code,
and any workarounds, maintenance releases, enhancements, and Updates provided
by SBH to LICENSEE under this Agreement. The term “Software” shall not be
deemed to include any Open Source Software.
Updates
means error corrections, bug fixes, patches, additions, enhancements, upgrades
or modified versions of the Software made available by SBH to its customers
that receive maintenance and support Services from SBH.
User
means a person who is authorized by LICENSEE to use, or who has access to or
receives any benefit of exposure to, the applicable Software, regardless of
whether the individual is actively using the Software at any given time. If a
single person uses, has access to or receives any benefit of exposure to
multiple instances of the Software, then each such instance counts as a User.
ORDERS. LICENSEE shall purchase and license Services and
Software by submitting written and signed purchase orders (which term, for
purposes of this Agreement, shall be deemed to include order forms prescribed
by SBH, if any) for written acceptance by SBH. Each purchase order shall
specify the Services and the items and license terms of Software being ordered
and their prices. Upon acceptance of the purchase order by SBH and the
acceptance by LICENSEE of this Agreement, the license of the Software and the
provision of Services shall be governed by the terms of this Agreement. Fees
payable for Services and licenses shall be as set forth in accepted LICENSEE
purchase orders issued under this Agreement. Any preprinted provisions of
LICENSEE’s purchase orders or other terms that conflict with the terms of this
Agreement shall not apply, exception to such provisions and terms is hereby
given and as between SBH and LICENSEE the terms set forth in this Agreement
shall be applicable and control. SBH reserves the right to change its prices
and related terms and conditions at any time without notice, provided that any
such changes shall not affect orders already accepted. All Software, Open
Source Software and Documentation shall be delivered via electronic download.
All Products shall be deemed accepted by LICENSEE upon delivery.
PAYMENT.
Once a purchase order has been accepted by SBH the term of any license
purchased under it cannot be subsequently changed without the written agreement
of the parties. All license fees and payments shall be nonrefundable regardless
of whether the LICENSEE uses the Software or not. LICENSEE shall promptly remit
payment in U.S. Dollars SBH shall have the right to cancel any order placed or
to refuse or delay its delivery or performance for failure of LICENSEE to make
any payments due SBH in accordance with the terms of this Agreement. LICENSEE
will pay all sums equal to taxes (including, without limitation, sales,
withholding, value-added, and similar taxes) and any duties paid or payable,
however designated, levied or based on amounts payable to SBH under this
Agreement, but exclusive of United States federal, state, and local taxes based
on SBH's net income, and will reimburse SBH for any such sum that SBH is
required to collect or pay with respect to transactions under this Agreement.
Subject to the terms and conditions of this Agreement, SBH
hereby grants to LICENSEE a limited, nonexclusive, personal, non-sublicenseable
and non-transferable license under SBH’s intellectual property rights to
install, and if applicable evaluate, the Software solely for Authorized Uses in
its internal business operation during the applicable license term purchased by
LICENSEE. LICENSEE may only use the Software subject to the maximum User
limitations, if any, that are indicated on the applicable purchase order. The
license granted in this Section 4.1.1 above for each Software product shall
remain in effect only during the applicable license term for that Software, and
upon the expiration or termination of that term such license shall terminate in
accordance with the provisions of Section 9.3 below. LICENSEE agrees (a) to
respect and observe and not to alter, remove, or conceal any copyright,
trademark, trade name, or other proprietary marking that may appear on or in
the Products, and (b) that LICENSEE is responsible for itself obtaining any
additional software, hardware, or technologies not provided by SBH under this
Agreement and required to operate the Products, including but not limited to
communications devices and Internet access services. LICENSEE may make one (1) copy of the
Products and the Documentation for archival and backup purposes, provided that
LICENSEE will reproduce on or in such copy any copyright, trademark, trade
name, or other proprietary marking that may appear on or in the Products or
Documentation copied.
LICENSEE
may permit its authorized contractors to access the Products solely in
connection with the performance of services for LICENSEE, provided that (i)
LICENSEE shall be liable for the acts of any such contractors, and that (ii)
LICENSEE shall cause such contractors to abide by the provisions of this
Agreement, and shall indemnify SBH for their failure to do so.
The
Products include proprietary information owned by SBH and its third party
licensors, and the Software and the Documentation are provided to LICENSEE
solely under license and not by sale.
SBH and its third party licensors will continue to own their respective
interests and intellectual property rights in the Products and will be entitled
to terminate this Agreement in accordance with Section 9 below, and demand the
return of their respective products, upon any failure of LICENSEE to comply
with the terms of this Agreement or the conditions or restrictions imposed by
third parties and referred to in Section 4.2 below.
SBH
reserves the right to make changes to any Products whenever such changes, (a) are required for
safety, (b) facilitate performance in accordance with specifications, or (c)
represent substitutions and modifications in accordance with applicable product
performance specifications, provided however that such changes shall not impede
LICENSEE's Authorized Use of any Products.
LICENSEE
acknowledges and agrees that as part of its normal operation the Software may
collect certain data relating to (a) use of the Software, (b) any viruses,
malware, Trojan Horses, and other malicious or harmful code discovered by the
Software (collectively “Viruses”), (c) the behavior or operation of such
Viruses, and (d) the data that is affected by the Viruses (collectively “Virus
Data”). In the event LICENSEE has licensed SBH’s Software to collect Virus
Data, a copy of the Virus Data will be sent by the Software to LICENSEE. If
LICENSEE has not licensed SBH’s Software to collect Virus Data, Virus Data will
be sent by the Software to SBH. The parties agree that they shall own all
rights to the Virus Data jointly without accounting.
LICENSEE
shall not itself, or through any affiliate, agent, or third party: (a)
decompile, disassemble, or otherwise reverse engineer any Software, or attempt
to reconstruct or discover any source code, underlying ideas, algorithms, file
formats or programming interfaces of any Software by any means whatsoever,
except to the extent applicable laws specifically prohibit such restrictions, (b)
modify, adapt, translate, or create derivative works based upon any
Software, (c) transfer, lease, loan,
sublicense, sell, resell for profit, distribute, or otherwise grant any rights
(including but not limited to a right to access or use) in any Software in any
form to any other party, (d) use any Software on a commercial time-sharing,
rental, or service bureau basis, or in any manner or for any purpose other than
an Authorized Use, or (e) disclose to any third party any underlying ideas or
algorithms, performance information, test results or analyses learned by
LICENSEE or created by or for LICENSEE (including, without limitation,
benchmarks) relating to any Software.
LICENSEE shall only have the rights with respect to the Products
expressly set forth in this Agreement; all other rights are expressly reserved
to SBH and its licensors. In the event LICENSEE believes that an action by it
under Section 4.1.5 (a) above would be warranted and permitted by applicable
law, it shall give SBH not less than ninety (90) days prior written notice of
such belief to enable SBH and any affected licensor of SBH to evaluate whether
such laws’ requirements necessitate such action.
LICENSEE
acknowledges that the Products, and all trade secret, copyright, patent, trademark,
trade name, and other intellectual and proprietary rights in the Products, are
and at all times shall remain the valuable property of SBH and its licensors,
or their respective successors or assigns. LICENSEE agrees that, except as
provided in this Section 4, nothing contained in this Agreement shall be
construed as granting or conferring by implication, estoppel, or otherwise, any
license or right under any patent, trademark, copyright, or other proprietary
right, whether now existing or hereafter obtained, and no such license or other
right shall arise from this Agreement or from any acts or omissions in
connection with the execution of this Agreement or the performance of the
obligations of the parties.
LICENSEE
agrees to promptly notify SBH of any violation of any of the terms of this
Section 4.1 by LICENSEE or others of which LICENSEE becomes aware.
Open
Source Software. SBH will redistribute certain Open Source Software to LICENSEE
for LICENSEE’s use with Products. As a condition of its use of the Open Source
Software, LICENSEE represents and warrants that it will familiarize itself
with, and comply with and be responsible for observing, the conditions and
restrictions required of software users by the owners of such Open Source Software
as referenced in
http://www.sandboxie.com/index.php?/support/Documentation/.
Availability.
Services shall be provided to LICENSEE by SBH in accordance with the terms and
prices of SBH's then current published Services offerings. SBH shall provide
maintenance and support Services in accordance with the terms set forth in
Exhibit A. SBH will not be responsible for providing Services for (a) any Third
Party Software, or (b) any Software that is not configured in accordance with
the specifications set forth in the Documentation and the applicable purchase
order.
Conditions. Services to be provided by SBH under this
Agreement require cooperation between LICENSEE and SBH, and LICENSEE recognizes
and accepts certain responsibilities. These LICENSEE responsibilities include
but are not limited to (a) providing SBH with specific de¬tails regarding
LICENSEE's business requirements and operating procedures as they relate to the
application of the Services to be performed by SBH, (b) proper installation of
and timely access to all necessary network devices and other computer hardware,
facilities, and applications and other software in accordance with mutually
agreeable and reasonable schedules, (c) development and signing of statement of
work agreements where appropriate, (d) assignment of appropriate personnel to
coordinate Services delivery with SBH in a timely manner, and (e) agreeing on a
timely basis to relevant delivery schedules.
Software.
SBH warrants that the Software delivered to LICENSEE by SBH will for a period
of thirty (30) days from the date of delivery perform when utilized in an
Authorized Use substantially as specified in the applicable Documentation. If
LICENSEE satisfactorily demonstrates to SBH within such thirty (30) day period
that an item of Software does not so perform then, as SBH’s sole and exclusive
liability and as LICENSEE’s sole and exclusive remedy, SBH shall at its sole
option either (a) correct the errors reported by LICENSEE, (b) replace the
Software with substantially conforming Software, or (c) refund the price paid
for the nonconforming Software. SBH does not warrant the results of its
correction or replacement services or that all errors will be corrected.
Correction or replacement and the issuance of any corrections, patches, bug
fixes, workarounds, upgrades, enhancements, or Updates by SBH to LICENSEE,
shall not be deemed to begin a new, extended, or additional warranty period.
Any replacement Software will be warranted for the remainder of the original
warranty period. The foregoing warranty shall not apply: (i) if the Software is
used with products not specified in or contemplated by the Documentation, (ii)
if any modifications are made to the Software by LICENSEE or any third party,
(iii) to errors in the Software due to accident, abuse, abnormal stress or
environment or improper use by LICENSEE, or (iv) to Software provided on a no
charge or evaluation basis
No
Other Warranties. THE LIMITED WARRANTY
IN SECTION 6.1 ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, AND ANY
WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR
USAGE OF TRADE. SBH SPECIFICALLY BUT WITHOUT
LIMITATION DOES NOT WARRANT THAT: (I) THE SOFTWARE SHALL MEET ALL OF LICENSEE’S
REQUIREMENTS OR SHALL OPERATE IN ALL THE COMBINATIONS WHICH MAY BE SELECTED FOR
USE BY LICENSEE, (II) THE OPERATION OF THE SOFTWARE SHALL BE ERROR-FREE OR
UNINTERRUPTED, (III) ALL ERRORS OR DEFECTS IN THE SOFTWARE SHALL BE CORRECTED,
OR (IV) ANY SECURITY MECHANISMS IMPLEMENTED BY THE SOFTWARE WILL NOT HAVE
INHERENT LIMITATIONS. SOME JURISDICTIONS
DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THAT THE ABOVE EXCLUSIONS
MAY NOT APPLY TO LICENSEE. THIS WARRANTY
GIVES LICENSEE SPECIFIC LEGAL RIGHTS.
LICENSEE MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO
JURISDICTION.
Exclusions.
THE OPEN SOURCE SOFTWARE AND ANY FREEWARE OR EVALUATION PRODUCTS ARE PROVIDED
TO LICENSEE “AS IS” WITHOUT WARRANTY OF ANY KIND BY SBH, INCLUDING BUT NOT
LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT. No representation or other affirmation of fact, whether made
by SBH employees or otherwise, shall be deemed a warranty by SBH for any
purpose or give rise to any liability of SBH whatever unless contained in this
Agreement.
Indemnity
by SBH. If a third party acting against
LICENSEE claims, threatens to claim, or obtains a judicial or administrative determination
that any Software infringes its patent, copyright, or trade secret rights, SBH
shall defend LICENSEE at SBH’s expense and pay all damages that a tribunal finally awards. INVINCIA shall also have the
right at its sole option and expense to (a) obtain for LICENSEE the right to
continue using the infringing item, (b) replace the infringing item or modify
it so that it shall become non-infringing with no substantial degradation, or
(c) remove the infringing portion of the Software and refund the proportional
fee that LICENSEE paid for such portion, pro rata, on a one-year straight-line
depreciation basis, provided that LICENSEE shall promptly notify SBH in writing
of the claim, and allow SBH to control, and cooperate with SBH in, the defense
and any related settlement negotiations. In no event shall SBH’s liability
under this Section 7 exceed the amount paid by LICENSEE to SBH for any
allegedly infringing Products.
Exceptions. Notwithstanding the provisions of Section 7.1
above, SBH shall have no obligation to LICENSEE for any claim arising from the
license or use of any Software (a) that has been modified by a party other than
SBH, (b) used to practice any process, or used in combination with other
products not provided by SBH where such infringement would not have occurred
but for such use in combination with such other products, (c) from failure of
LICENSEE to use updated Software provided by SBH for avoiding such
infringement, or (d) that is part of any Evaluation Products. SBH shall not be bound by any settlement of
any charge of infringement made without the prior written consent of SBH.
LICENSEE shall indemnify and hold SBH harmless from any loss, cost, or expense
in connection with any claim, suit, or proceeding brought against SBH or LICENSEE
insofar as it is based on a claim that the use of any Software infringed
because of the way it was modified or altered by parties other than by SBH, or
because it was used in a manner for which it was not designed or for a use not
an Authorized Use.
Limitation. THIS SECTION 7 STATES THE ENTIRE LIABILITY OF
SBH TO LICENSEE AND ANY AND ALL THIRD PARTIES, WHETHER FOR DAMAGES OR
OTHERWISE, FOR INFRINGEMENT OF ANY COPYRIGHT, PATENT, TRADE SECRET, OR OTHER
INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO ANY PRODUCTS OR SERVICES FURNISHED
BY SBH UNDER THIS AGREEMENT.
Limitation. It is expressly agreed that each party’s
maximum liability for damages to the other party under or in connection with
this Agreement, regardless of the form of legal action, whether in contract or
in tort, including negligence, shall in no event exceed the actual payments
received by SBH for the Products or Services that caused such damage or that
are directly related to the cause of action, except that no such limitation on
damages shall apply to losses due to either party’s breach of Section 11.11 or
LICENSEE’s breach any of the licenses or license restrictions set forth in this
Agreement.
No
Consequential Damages. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS
OF USE, OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS, OR,
IF REASONABLY FORESEEABLE, INCURRED BY THE OTHER PARTY OR CLAIMED AGAINST THE
OTHER PARTY BY ANY OTHER PARTY, EXCEPT THAT NO SUCH LIMITATIONS ON
CONSEQUENTIAL DAMAGES SHALL APPLY IN THE EVENT OF BREACH BY EITHER PARTY OF
SECTION 11.11 OR BREACH BY LICENSEE OF ANY OF THE LICENSES OR LICENSE
RESTRICTIONS CONTAINED IN THIS AGREEMENT.
NEITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM
THE NEGLIGENCE OF A PARTY OR THAT OF ITS EMPLOYEES OR AGENTS OR IN RELATION TO
ANY OTHER LIABILITY THAT MAY NOT BY APPLICABLE LAW BE EXCLUDED OR LIMITED IS
EXCLUDED OR LIMITED AND NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS AN
ATTEMPT TO EXCLUDE OR LIMIT SUCH LIABILITY.
Reasonability. The parties agree that the provisions of this
Agreement fairly allocate the risks between SBH, on the one hand, and LICENSEE
on the other. LICENSEE acknowledges and agrees that its pricing reflects the
allocations of risk and the limitations of liability specified in this
Agreement, and that SBH would not enter into this Agreement without such
allocations and limitations.
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