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 AS THE CUSTOMER FOR THE ACCOMPANYING COMPUTER SOFTWARE PRODUCT OR ON BEHALF OF THE COMPANY, GROUP OR AGENCY IDENTIFIED AS THE CUSTOMER IN THE INVOICE FOR THE ACCOMPANYING COMPUTER SOFTWARE PRODUCT (“LICENSEE”) AND TO BIND LICENSEE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST CLICK ON THE “I DECLINE” BUTTON TO DISCONTINUE THE DOWNLOAD 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 computer software product (“Software”) and any associated media, printed materials and online or electronic documentation (“Documentation”). If Licensee does 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 application of Section 1(a)(i), 1(a)(ii) or 1(a)(iii) of this Agreement to Licensee is determined by how Licensee is identified in Licensor’s invoice for the Software:
(i) If Licensee is identified as an “Agency” in the invoice for the Software, this Section 1(a)(i) applies to Licensee. 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, BlackBag hereby grants to Licensee a worldwide, non-exclusive, revocable, non-transferable, non-sublicenseable limited license to use, execute and display an unlimited number of copies of the Software on an unlimited number of Licensed Systems, in executable object code format only, and to make use of BlackBag’s standard technical support services which BlackBag makes generally commercially available to licensees of the Software in the United States, 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 a Licensed User at any given instance. The term “Licensed User” means one or more particular individuals which are employees or contractors of Licensee 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 BlackBag has been connected or accessed, as authorized by BlackBag in the applicable License Confirmation.
(ii) If Licensee is identified as a “Group” in the invoice for the Software, this Section 1(a)(ii) applies to Licensee. 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, BlackBag hereby grants to Licensee a worldwide, non-exclusive, revocable, non-transferable, non-sublicenseable limited license to use, execute and display an unlimited number of copies of the Software on an unlimited number of Licensed Systems, in executable object code format only, and to make use of BlackBag’s standard technical support services which BlackBag makes generally commercially available to licensees of the Software in the United States, during the term of this Agreement, and solely for Licensee’s own internal business purposes, provided that the Software may not be used, executed, or displayed by more than the maximum number of concurrent Licensed Users specified in Licensor’s invoice for the Software at any time. The term “Licensed User” means one or more particular individuals which are employees or contractors of Licensee authorized to use, execute, and display the Software in accordance with this Agreement. For the avoidance of doubt, “Licensed User” does not include employees or contractors of the parent agency or organization of which Licensee is a part. The term “Licensed System” means a computer to which an activation key provided by BlackBag has been connected or accessed, as authorized by BlackBag in the applicable License Confirmation.
(iii) If Licensee is not identified as an “Agency” or a “Group” in the invoice for the Software, this Section 1(a)(iii) applies to Licensee. 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, BlackBag hereby grants to Licensee a worldwide, non-exclusive, revocable, non-transferable, non-sublicenseable limited license to: (i) use, execute and display one (1) copy of the Software on one (1) Licensed System at any given instance, in executable object code format only, for Licensee’s own internal business purposes; (ii) maintain one (1) copy of the Software on one (1) Licensed System at any given instance, in executable object code format only, for backup and disaster recovery purposes; and (iii) make use of BlackBag’s standard technical support services which BlackBag makes generally commercially available to licensees of the Software in the United States. The term “Licensed System” means a computer to which an activation key provided by BlackBag has been connected or accessed, as authorized by BlackBag 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 on Licensed Systems; (i) remove any proprietary notices or labels on the Software; (j) make the functionality of the Software simultaneously available to multiple users through any means, including but not limited to by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other type of services; or (k) 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 BlackBag expressly states otherwise. Notwithstanding the previous sentence, neither BlackBag nor any of its suppliers is obligated to provide any services, updates or upgrades to the Software.
2. Proprietary Rights.
BlackBag 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 BlackBag and its licensors.
(a) Commencing on the Effective Date and continuing for an initial period of one (1) year (the “Initial Update Period”), BlackBag will make available to Licensee all updates and bug fixes to the Software which BlackBag makes generally commercially available to licensees of the Software in the United States (collectively, “Updates”).
(b) After the Initial Update Period, BlackBag will make Updates available to Licensee for additional one (1) year periods (each a “Renewal Update Period”), contingent on Licensee’s payment of BlackBag’s annual Update fee for such Renewal Update Period.
(c) Updates provided to Licensee hereunder are deemed to be “Software” for the purposes of this Agreement.
4. License and Update Fees; Payment Terms.
(a) As consideration for the license grant set forth in Section 1, for access to BlackBag’s standard technical support services and for the Updates provided during the Initial Update Period, BlackBag will be due the license fee agreed upon by BlackBag and Licensee, which will be paid by Licensee within thirty (30) days of the Effective Date.
(b) As consideration for the Updates provided during each Renewal Update Period, BlackBag will be due the annual Update fee agreed upon by BlackBag and Licensee for such Renewal Update Period, which will be paid by Licensee within thirty (30) days of BlackBag’s invoice date.
5. Term and Termination.
(a) This Agreement and the licenses granted hereunder are effective on the Effective Date and shall continue unless and until this Agreement is terminated by either party as provided herein.
(b) BlackBag 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.
(c) Licensee may terminate this Agreement because of a material breach by BlackBag, if such material breach remains uncured for thirty (30) days following written notice of the breach. Within thirty (30) days following the effective date of such termination, BlackBag will refund to Licensee (i) the unamortized portion of the license fee paid, based on a straight-line five (5) year depreciation commencing on the Effective Date and (ii) the pro-rata portion of any pre-paid Update fee for the Renewal Update Period in which such termination is effective.
(d) Licensee may terminate this Agreement for convenience at any time by sending either an email to firstname.lastname@example.org with Licensee’s name and the subject “CANCEL MOBILYZE” 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 BlackBag may specify in writing by posting the new address on the BlackBag Technologies website.
(e) Upon expiration or termination of this Agreement for any reason, (i) all licenses granted and access to technical support made available to Licensee under this Agreement shall immediately terminate and Licensee’s rights to use the Software shall immediately cease, and (ii) Licensee shall promptly return to BlackBag 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 BlackBag in writing by an officer of Licensee that Licensee has done so.
(f) Upon expiration or termination of this Agreement for any reason, Section 5(c) will remain in effect for so long as BlackBag’s refund obligations thereunder are outstanding and Sections 2, 5(e), 5(f), 6(b)-(e) and 7 through 10, inclusive, shall survive and remain in effect.
6. Warranties; Disclaimers.
(a) Commencing on the Effective Date and for a period of sixty (60) days thereafter (the “Software Warranty Period”), BlackBag 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. BlackBag does not warrant that the Licensee’s use of the Software will be error-free or uninterrupted. BlackBag 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 BlackBag by Licensee in writing during the Software Warranty Period or, if BlackBag determines that it is unable to correct the error, BlackBag 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) BlackBag represents and warrants that the Software, in the form provided to Licensee, does not and will not during the term of this Agreement violate, infringe or misappropriate any third party’s intellectual property rights.
(c) Licensee represents and warrants that neither Licensee nor any of its agents, officers or employees will use the Software in a manner which violates any applicable law, rule or regulation.
(d) BLACKBAG PROVIDES NO WARRANTY WHATSOEVER ON ANY HARDWARE. LICENSEE’S EXCLUSIVE REMEDY AND THE SOLE AND ENTIRE LIABILITY OF BLACKBAG WITH RESPECT TO ANY ACTIVATION KEY SHALL BE, UPON LICENSEE’S RETURN OF THE DEFECTIVE ACTIVATION KEY TO BLACKBAG, BLACKBAG WILL SHIP A REPLACEMENT ACTIVATION KEY TO LICENSEE AT BLACKBAG’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 BlackBag at the address provided in section 5(c), above.
(e) EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 6(a) AND 6(b), THE SOFTWARE, DOCUMENTATION, ANY ACTIVATION KEY, TECHNICAL SUPPORT OR OTHER SERVICES PROVIDED BY BLACKBAG HEREUNDER ARE 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 BLACKBAG OR ITS AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. IF BLACKBAG 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.
7. Indemnity; Additional Remedies for Infringement.
(a) Each party (an “Indemnifying Party”) will indemnify, defend and otherwise hold harmless the other party (the “Indemnified Party”), its officers, directors, employees, agents and subsidiaries from and against any claim or suit brought by a third party against the Indemnified Party relating to, or resulting from, the Indemnifying Party’s breach or alleged breach of this Agreement or any of the Indemnifying Party’s representations and warranties hereunder. The Indemnified Party will promptly notify the Indemnifying Party of any and all such claims and will reasonably cooperate with the Indemnifying Party with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts the Indemnified Party in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement will require the Indemnified Party’s written consent (to be granted or withheld at the Indemnified Party’s sole discretion) and the Indemnified Party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.
(b) In addition to BlackBag’s obligations of defense and indemnity hereunder, if Licensee’s use of any of the Software hereunder is, or in BlackBag’s opinion is likely to be, enjoined, BlackBag may, at its sole option and expense: (a) procure for Licensee the right to continue using such Software under the terms of this Agreement; (b) replace or modify such Software so that it is non-infringing and substantially equivalent in function to the enjoined Software; or (c) if options (a) and (b) above cannot be accomplished despite BlackBag’s reasonable efforts, then BlackBag may terminate Licensee’s rights and BlackBag’s obligations hereunder with respect to such Software and refund to Licensee the unamortized portion of the license fees paid for such Software, based upon a straight-line five (5) year depreciation commencing as of the date of receipt by Licensee of such Software.
8. Limitation of Liability.
(a) EXCEPT IN CONNECTION WITH BLACKBAG’S OBLIGATIONS OF DEFENSE AND INDEMNITY HEREUNDER, IN NO EVENT SHALL BLACKBAG 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, DOCUMENTATION, ANY ACTIVATION KEY, TECHNICAL SUPPORT OR OTHER SERVICES PROVIDED BY BLACKBAG HEREUNDER, EVEN IF BLACKBAG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN CONNECTION WITH BLACKBAG’S OBLIGATIONS OF DEFENSE AND INDEMNITY HEREUNDER, IN NO EVENT SHALL BLACKBAG’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 AND TECHNICAL SUPPORT. BLACKBAG’S LICENSORS AND SUPPLIERS WILL HAVE NO LIABILITY FOR DAMAGES WHATSOEVER ARISING FROM OR RELATED TO THIS AGREEMENT. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND BLACKBAG WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS AND EXCLUSIONS. (b) Accordingly, Licensee, not BlackBag, is responsible for all back-up of Licensee’s files and data. BlackBag will not be liable for Licensee’s failure to back-up files and data under any circumstances, nor will BlackBag be liable for any loss of data, including without limitation the cost of reconstructing data lost due to Licensee’s use of the Software or for BlackBag’s provision of Support.
9. Open Source and Third Party Software.
(a) Licensee acknowledges that the Software includes certain third party software that is made available under third party commercial and open source licenses (the “Third Party Licenses”). The current list of such Third Party Licenses may be found at https://www.blackbagtech.com/mobilyze-3rd-party-licenses.html. BlackBag reserves the right to update this list of Third Party Licenses from time to time to reflect changes in the Software.
(b) LICENSEE’S USE OF ANY THIRD PARTY SOFTWARE INCLUDED IN THE SOFTWARE IS SUBJECT TO, AND LICENSEE WILL COMPLY WITH, THE TERMS OF THE APPLICABLE THIRD PARTY LICENSES.
(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 BlackBag’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) Government Users. The 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.”
(e) This Agreement may not be assigned by Licensee without the prior written permission of BlackBag. BlackBag expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder to a successor in interest in connection with a sale of BlackBag or the sale of all, or substantially all, of BlackBag’s assets to which this Agreement relates or to any entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with BlackBag. Any purported assignment in derogation of the foregoing shall be without any effect.
(f) 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.
(g) 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.
(h) 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.
(i) Any breach of this Agreement by Licensee would cause irreparable injury to BlackBag for which monetary damages would not be an adequate remedy and, therefore, BlackBag will be entitled to injunctive relief (including specific performance).
(j) This Agreement 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.
Last updated October 2, 2014