End User License Agreement
IMPORTANT – PLEASE READ THE TERMS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY. BY CLICKING ON THE “Agree” BUTTON, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, PERSONALLY OR ON BEHALF OF THE COMPANY OR AGENCY YOU HAVE NAMED AS THE CUSTOMER (THE “LICENSEE”), AND TO BIND THE LICENSEE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST CLICK ON THE “Disagree” BUTTON TO DISCONTINUE THE INSTALLATION OR ACTIVATION OF THE SOFTWARE. IN SUCH CASE, PLEASE CONTACT LICENSOR REGARDING A REFUND OF ANY FEES PAID.
This Agreement is a legal agreement between Licensee and BlackBag Technologies, Inc. (“Licensor”) for the accompanying software product (“Software”), which includes computer software and may include associated media, printed materials and online or electronic documentation (“Documentation”). If you do not agree to the terms and conditions of this Agreement, do not download, activate, or use the Software.
1. License Grant and Restrictions.
(a) The Software and Documentation are licensed, not sold to Licensee for use only under the terms of this Agreement. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a personal, royalty-free, worldwide, non-exclusive, non-transferable, non-sublicenseable license to use, execute and display one (1) copy of the Software, or the number of copies otherwise set forth, along with any other requirements or notices, in a separate, written authorization from Licensor to Licensee (the “License Confirmation”), in executable object code format only, during the term of this Agreement, and solely for Licensee’s own internal business purposes, provided that each such authorized copy of the Software shall be used, executed, or displayed solely by one (1) Licensed User and on one Licensed System at any given instance. The term “Licensed User” means a particular individual authorized by Licensee to use, execute, and display the Software in accordance with this Agreement. The term “Licensed System” means a computer to which an activation key provided by Licensor has been connected or accessed, as authorized by Licensor in the applicable License Confirmation.
(b) Licensee shall not, and shall not permit any third party to: (a) sell, lease, license, rent, loan, or otherwise transfer the Software, with or without consideration; (b) permit any third party to access or use the Software; (c) permit any third party to benefit from the use or functionality of the Software via a timesharing, service bureau, or other arrangement; (d) transfer any of the rights granted to Licensee under this Agreement; (e) reverse engineer, decompile, or disassemble the Software; (f) modify or create derivative works based upon the Software in whole or in part; (g) reproduce the Software, except as expressly permitted in Section 1(a) above; (h) access or use the Software except as permitted by Licensed Users on Licensed Systems; (i) remove any proprietary notices or labels on the Software; or (j) use the Software for any purpose other than expressly permitted in Section 1(a) above.
(c) Any future release, update, or other addition to functionality of the Software shall be subject to the terms of this Agreement, unless Licensor expressly states otherwise. Notwithstanding the previous sentence, neither Licensor nor any of its suppliers is obligated to provide any services, updates or upgrades to the Software.
2. Proprietary Rights.
Licensor and its licensors shall retain exclusive ownership of all worldwide copyrights, trade secrets, patents, and all other intellectual property rights throughout the world and all applications and registrations therefor, in and to the Software and any full or partial copies thereof, including any additions or modifications thereto. All rights in and to the Software not expressly granted to Licensee in this Agreement are expressly reserved to Licensor and its licensors.
3. Term and Termination.
(a) This Agreement and the licenses granted hereunder are effective on the date Licensee downloads the Software and shall continue unless and until this Agreement is terminated by either party as provided herein.
(b) Licensor may terminate this Agreement immediately because of a material breach by Licensee by delivery of notice of breach to Licensee. Any notice to Licensee may be provided by e-mail sent to the address provided by Licensee. Licensee may terminate this Agreement at any time, with or without cause. Licensee may terminate this Agreement by sending either an email to firstname.lastname@example.org with Licensee’s name and the subject “CANCEL BLACKLIGHT” or a letter sent by confirmed delivery to: Customer Service Dept., BlackBag Technologies, Inc. 300 Piercy Rd., San Jose, CA 95138 or to such other address as Licensor may specify in writing by posting the new address on the BlackBag Technologies website.
(c) Upon expiration or termination of this Agreement for any reason, (i) all licenses granted to Licensee under Section 1(a) shall immediately terminate and Licensee’s rights to use the Software shall immediately cease, and (ii) Licensee shall promptly return to Licensor or destroy the Software (including but not limited to copies of the Software resident on Licensee’s hard drives and backup media), and all copies thereof, and certify to Licensor in writing by an officer of Licensee that Licensee has done so.
(d) Upon expiration or termination of this Agreement for any reason, Sections 2, 3(c), 3(d), 4, 5, 6 and 7 shall survive and remain in effect.
4. Limited Warranty.
(a) For a period of sixty (60) days after the first download of the Software by Licensee (the “Software Warranty Period”), Licensor warrants that the Software, when used as permitted under this Agreement and in accordance with the instructions in the Documentation will operate substantially as described in the Documentation. Licensor does not warrant that the Licensee’s use of the Software will be error-free or uninterrupted. Licensor will, at its own expense and as its sole obligation and Licensee’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error in the Software reported to Licensor by Licensee in writing during the Software Warranty Period or, if Licensor determines that it is unable to correct the error, Licensor will refund to Licensee all license fees actually paid, in which case this Agreement and Licensee’s right to use the Software will be terminated. Any such error correction provided to Licensee will not extend the original Software Warranty Period.
(b) If a hardware activation key is provided, then for a period of sixty (60) days after shipment of the activation key by Licensor, Licensor warrants that when used as permitted under this Agreement and in accordance with the instructions in the Documentation, the encoding of the Software on the activation key will operate substantially in accordance with the Documentation. LICENSOR PROVIDES NO WARRANTY WHATSOEVER ON ANY HARDWARE. LICENSEE’S EXCLUSIVE REMEDY AND THE SOLE AND ENTIRE LIABILITY OF LICENSOR WITH RESPECT TO ANY ACTIVATION KEY SHALL BE, UPON LICENSEE’S RETURN OF THE DEFECTIVE ACTIVATION KEY TO LICENSOR, LICENSOR WILL SHIP A REPLACEMENT ACTIVATION KEY TO LICENSEE AT LICENSOR’S EXPENSE. ANY REPLACEMENT ACTIVATION KEY PROVIDED TO LICENSEE WILL NOT EXTEND THE ORIGINAL SOFTWARE WARRANTY PERIOD. To make a warranty claim, Licensee must contact Licensor at the address provided in section 3 (b), above.
(c) EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 4(a) and 4(b), THE SOFTWARE, DOCUMENTATION, ANY ACTIVATION KEY AND ANY SUPPORT OR OTHER SERVICES PROVIDED BY LICENSOR HEREUNDER IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE. THE ENTIRE RISK ARISING OUT OF THE USE OF THE SOFTWARE IS WITH LICENSEE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. IF LICENSOR CANNOT DISCLAIM IMPLIED WARRANTIES UNDER APPLICABLE LAW, THEN TO THE MAXIMUM EXTENT POSSIBLE, SUCH IMPLIED WARRANTIES ARE LIMITED TO THE DURATION OF THE EXPRESS SOFTWARE WARRANTY PERIOD.
5. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF OR DAMAGE TO BUSINESS INFORMATION OR DATA OR OTHER PECUNIARY LOSS, OR FOR ANY INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE, ANY ACTIVATION KEY OR DOCUMENTATION, EVEN IF LICENSOR OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY AND NEGLIGENCE) EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE SOFTWARE. LICENSOR’S LICENSORS AND SUPPLIERS WILL HAVE NO LIABILITY FOR DAMAGES WHATSOEVER. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS AND EXCLUSIONS.
6. Open Source and Third Party Software.
Licensee acknowledges that this Software distribution includes certain third party software that is made available under third party commercial and open source licenses (the “Third Party Licenses”). For information about such Third Party software and Licenses, please see ‘BlackLight 3rd Party Licenses.rtf’
LICENSEE ACKNOWLEDGES AND AGREES THAT ITS COPYING, MODIFICATION OR DISTRIBUTION OF ANY THIRD PARTY SOFTWARE IS SUBJECT TO, AND LICENSEE WILL COMPLY WITH, THE TERMS OF THE APPLICABLE THIRD PARTY SOFTWARE LICENSE(S). BEFORE COPYING, MODIFYING, OR DISTRIBUTING ANY OF THE THIRD PARTY SOFTWARE, LICENSEE WILL CONFIRM THAT IT HAS ALL NECESSARY RIGHTS AND PERMISSIONS TO DO SO.
7. Data Collection
Licensee agrees that this software distribution may collect and use technical data, including but not limited to technical information about missing memory symbol data to facilitate the provision of software updates, product support and other services to Licensee (if any) related to the Licensed Application. Licensor may use this information, as long as it is in a form that does not personally identify Licensee, to improve its products or to provide services or technologies to Licensee.
(a) This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles. Licensee hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Licensor’s principal place of business is located for any lawsuit filed arising from or related to this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
(b) If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
(c) The Software and related technical information and materials may be subject to export controls under U.S. or other export laws and regulations. Licensee agrees that Licensee shall not export or re-export the Software in any form in violation of the export or import laws and regulations of the United States or any other jurisdiction.
(d) Licensee shall not use the Software for any purpose prohibited by law. Licensee shall defend, indemnify and hold Licensor and its licensors harmless from and against any violation of any laws or regulations by Licensee or any of its agents, officers, or employees.
(e) Government Users. This Software and related Documentation, including technical data and manuals, are commercial as defined at Federal Acquisition Regulation (FAR) 2.101 and were developed solely at private expense. In accordance with FAR 12.212 and Defense Federal Acquisition Regulation Supplement 227.7202, no rights are conferred to any Government end user of this Software and related documentation except as expressly provided in this Agreement. No other rights are conferred; all other uses are prohibited. In the event that this Software is transferred, moved, sold or duplicated (transfer) for Government purposes, the transferor will ensure that the following legend is affixed to the Software in a conspicuous place prior to such transfer:
‘All use, duplication, transfer, adaption, modification or disclosure of this software and related documentation is prohibited except as expressly provided in the BlackBag Technologies, Inc. End User License Agreement and any modifications thereto. For further information contact BlackBag Technologies, Inc.’.
(f) This Agreement may not be assigned by Licensee without the prior, written permission of Licensor. Licensor expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. Any purported assignment in derogation of the foregoing shall be without any effect.
(g) This Agreement may not be modified or amended except in writing, signed by both parties. Any purported oral modification or amendment of this Agreement in derogation of the foregoing shall be without any effect.
(h) Neither party may waive any right hereunder except expressly and in writing. Any other purported waiver of any such right shall be without any effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(i) The headings in this Agreement are provided for purposes of convenience only, and the sections of this Agreement shall be interpreted without regard to their respective headings.
(j) Any breach of this Agreement by Licensee would cause irreparable injury to Licensor for which monetary damages would not be an adequate remedy and, therefore, Licensor will be entitled to injunctive relief (including specific performance).
(k) This Agreement and the applicable License Confirmation is the entire agreement between the parties with respect to this subject matter, and supersedes all prior and contemporaneous discussions, negotiations, communications, documentation and agreements with respect thereto.
300 Piercy Rd.
San Jose, CA 95138