K-Secure END USER'S LICENSE AGREEMENT
The software that is subject to this End User's License Agreement (EULA) is licensed, not sold, to you (the "Licensee") by K-Secure Technologies, LLC. ("K-Secure").
IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS EULA, THEN WITHIN 30 CALENDAR DAYS AFTER ACQUIRING THE LICENSED SOFTWARE, LICENSEE MAY RETURN IT TO THE PLACE WHERE LICENSEE OBTAINED IT FOR A FULL REFUND (LESS, IF APPLICABLE, SHIPPING, HANDLING, AND ANY TAXES), BUT ONLY IF LICENSEE HAS NOT INSTALLED, COPIED, ACCESSED, OR USED THE LICENSED SOFTWARE.
Installing, copying, accessing, or using the Licensed Software constitutes Licensee's acceptance of, and promise to comply with, all of the terms and conditions of this EULA.
The "Licensed Software" includes all of the contents of the files, disk(s), CD-ROM(s), DVDs, or other media for which this EULA is provided, including:
(1) third-party computer information or software that K-Secure has licensed for inclusion in the Licensed Software;
(2) written materials or files relating to the Licensed Software ("Documentation");
(3) fonts; and
(4) upgrades, modified versions, updates, additions, and copies of the Licensed Software, if any (collectively, "Updates").
Unless Licensee has purchased a Site License Agreement, Licensee may only install one copy of the Licensed Software on a single computer. Licensee shall be solely responsible for all expenses incurred in Licensee's installation of the Licensed Software.
The Licensed Software contains technological measures that are designed to prevent its unlicensed or illegal use. The Licensed Software may contain enforcement technology that limits Licensee's ability to install and uninstall the Licensed Software on a machine to no more than a finite number of times, and for a finite number of machines.
The Licensed Software may require activation as explained during installation and in the Documentation. If any such applicable activation procedure(s) is not followed, then the Licensed Software may only operate for a finite period of time. If activation is required, and not completed within the finite period of time set forth in the Documentation and explained during installation, then the Licensed Software will cease to function until activation has been completed, at which time functionality will be restored. If Licensee has any problem with the activation process, Licensee should contact K-Secure customer support.
Licensee may only make one copy of the Licensed Software for backup or archival purposes only, except that the Documentation may not be duplicated.
Licensee may not sell, assign, sublicense, rent, lease, lend or otherwise transfer the Licensed Software or the License granted by this EULA without prior written consent of K-Secure.
The License granted by this EULA is non-exclusive. Licensee may not use the Licensed Software except as expressly permitted by this License.
(1) Licensee may not modify, alter, adapt or translate all or any portion of the Licensed Software;
(2) Licensee may not create any derivative works from all or any portion of the Licensed Software;
(4) Licensee may not reverse-engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Licensed Software;
(5) Licensee may not use a previous version of the Licensed Software after receiving a media replacement or upgraded version as a replacement to a prior version (in such case you must destroy the prior version);
(6) Licensee may not use the Licensed Software in the operation of aircraft, ship, nuclear facilities, life-support machines, communication systems, or any other equipment in which the failure of the software could lead to personal injury, death, or environmental damage;
(7) Licensee may not remove or obscure K-Secure's copyright or trademark notices, or the copyright and trademark notices of third parties that K-Secure has included in the Licensed Software; and
(8) Licensee may not use the Licensed Software to host applications for third parties, as part of a facility management, time-sharing, service provider, or service bureau arrangement; and
(9) Licensee may not use the Licensed Software in any manner not authorized by this EULA.
Licensee may use any clip art, photographs, icons, fonts, shapes, animations, sounds, music, video clips, and all other graphic content (collectively, "Content") included with the Licensed Software, if any, only as stated in the Documentation. If the Documentation does not permit Licensee to use the Content, then Licensee may not display, modify, reproduce, or distribute any of the Content; and even if the Documentation permits Licensee to use the Content, Licensee may not distribute the Content on a stand-alone basis such as where the Content constitutes the primary value of whatever Licensee is distributing.
Certain portions of the Content may consist of the copyrights, trademarks, service marks, trade names, or other intellectual property of third parties. These portions of the Content are provided for the convenience of certain users of the Software who are expressly authorized to use them by their owners. You may not use any third-party intellectual property without their express authorization. Furthermore:
(1) Licensee may not sell, license, distribute (commercially or otherwise), or make available the Content as stand-alone images or sounds, or in catalogs, design books, compilations, collections, templates, designs, stock engravings, products, services, or the like;
(2) Licensee may not sell, license, distribute (commercially or otherwise), or make available electronic copies of the Content to third parties in any manner, including without limitation, via the Internet, on any tangible media or by broadcast, that is intended or designed to enable a third party to copy the Content for its own use;
(3) Licensee may not sell, license, distribute (commercially or otherwise), or make available electronic copies of the Content that includes representations of identifiable individuals, governments, logos, initials, emblems, trademarks, or entities that expresses or implies any endorsement or association with any product, service, entity, or activity; and
(4) Under no circumstances may the Content be used in the production of defamatory, fraudulent, infringing, lewd, obscene, or pornographic material, or in any otherwise illegal manner.
Licensee is solely responsible for Licensee's use of the Content. Licensee may only use the Content responsibly, in a manner consistent with the exercise of good judgment. If Licensee is having difficulty deciding whether Licensee's intended use is appropriate, or whether Licensee needs written permission, or whether other legal issues should be considered, K-Secure strongly encourages Licensee to seek competent legal counsel. K-Secure will not assist Licensee in making this determination, nor can K-Secure provide Licensee with legal advice as to intellectual property rights.
If Licensee or Licensee's attorney determines that Licensee is required by law to obtain written permission to use portions of the Content, Licensee must request permission for reproduction, redistribution, or modification of the Content from the appropriate owner of the subject materials (as may be cited in the Licensed Software). If, on the other hand, Licensee or Licensee's attorney determines it is permissible to proceed and include Content from the Licensed Software, K-Secure requires Licensee to correctly designate K-Secure's trademark(s) when referring to the Licensed Software in the notice or copyright portion of Licensee's paper, project, or product.
Licensee shall indemnify, hold harmless, and defend K-Secure and K-Secure's suppliers and licensors from all claims, damages, losses, attorneys' fees, costs, and lawsuits that arise from, or result from, Licensee's use or distribution of Content, and/or from any breach by Licensee of this EULA.
If the Licensed Software is an Update to a previous version, Licensee must possess a valid License to the previous version. Any Update provided to Licensee is made on a License-exchange basis such that Licensee agrees, as a condition for receiving an Update, that Licensee will terminate all of Licensee's rights to use any previous version of the Licensed Software. However, Licensee may continue to use the previous version only to assist in transitioning to the Updated version. Once an Update has been released, K-Secure may cease support for prior versions, without any notice to Licensee.
K-Secure provides updates to the content of some of its software from time to time, including but not limited to, virus definitions, URL lists, rules, and updated vulnerability data. These types of updates are collectively referred to as "Content Updates." Licensee may obtain any such Content Updates during the initial period provided for by the applicable software without additional charge. Licensee may purchase a separate subscription for a specified period of time to continue to receive Content Updates after the initial period expires. K-Secure reserves the right to designate specified Content Updates as requiring purchase of a separate subscription at any time, and without prior notice to Licensee, except that any such change will only become effective at the earlier of the expiration of the initial period provided for by the applicable software, or the expiration of the term of a separately paid for subscription.
K-Secure is not obligated by this EULA to provide Licensee with any technical support services relating to the Licensed Software; however, Licensee may order additional support services for an additional charge as K-Secure may offer from time to time during the term of this EULA.
LIMITED WARRANTY ON MEDIA.
K-Secure warrants that the media on which the Licensed Software is distributed will be free from defects for a period of 30 days from the date the Licensed Software is delivered to Licensee. If Licensee discovers a defect in the media during this 30-day period, Licensee must then return the defective media to K-Secure within 10 calendar days of discovering the defect, and Licensee's sole remedy is to have either the defective media replaced, or at K-Secure's sole option, a refund of the money that Licensee paid for the Licensed Software.
NO WARRANTY ON LICENSED SOFTWARE.
THE LICENSED SOFTWARE (EXLUDING THE MEDIA ON WHICH IT IS DISTRIBUTED) IS PROVIDED TO LICENSEE "AS IS." K-Secure, AND K-Secure's SUPPLIERS AND LICENSORS, MAKE NO WARRANTY AS TO ITS USE OR PERFORMANCE. K-Secure, AND K-Secure's SUPPLIERS AND LICENSORS, MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, EXCEPT FOR, AND TO THE EXTENT, THAT A WARRANTY MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW IN LICENSEE'S JURISDICTION.
LIMITATION OF LIABILITY.
IN NO EVENT WILL K-Secure, OR K-Secure's SUPPLIERS OR LICENSORS, BE LIABLE TO LICENSEE FOR ANY DAMAGES, CLAIMS, OR COSTS WHATSOEVER, OR FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNATIVE, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A REPRESENTATIVE OF K-Secure OR ONE OF K-Secure’s SUPPLIERS OR LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS, OR COSTS, OR FOR ANY CLAIM BY ANY THIRD PARTY. THESE LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE'S JURISDICTION. THE AGGREGATE LIABILITY OF K-Secure, AND K-Secure's SUPPLIERS, UNDER OR IN CONNECTION WITH THIS EULA, SHALL BE LIMITED TO THE AMOUNT PAID FOR THE LICENSED SOFTWARE, IF ANY.
ADDITIONAL TERMS FOR BETA SOFTWARE.
If the Licensed Software that Licensee receives with this EULA is pre-commercial release or "BETA" software ("Pre-release Software"), then, to the extent that any provision in this section is in conflict with any other term or condition in this EULA, this section supersedes such conflicting term(s) and condition(s) as to the Pre-release Software, but only to the extent necessary to resolve the conflict.
Licensee acknowledges that the Pre-release Software does not represent the final product from K-Secure, and may contain bugs, errors, and other problems that could cause system or other failures and data loss. Consequently, K-Secure disclaims any warranty or liability obligations to Licensee of any kind whatsoever.
IN APPLICABLE JURISDICTIONS WHERE LIABILITY CANNOT BE SO EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT MAY BE LIMITED, K-Secure's LIABILITY, AND THAT OF ITS SUPPLIERS, SHALL BE LIMITED TO THE TOTAL OF FIFTY DOLLARS (U.S. $50.00).
Licensee acknowledges that K-Secure has not promised or guaranteed to Licensee that the Pre-release Software will be announced or made available to anyone in the future, and that K-Secure has no express or implied obligation to Licensee to announce or introduce the Pre-release Software. K-Secure may decide not to introduce a product similar to, or compatible with, the Pre-release Software. Accordingly, Licensee acknowledges that any research or development that Licensee performs regarding the Pre-release Software, or any product associated with the Pre-release Software, is done entirely at Licensee's own risk.
During the term of this EULA, if requested by K-Secure, Licensee will provide feedback to K-Secure regarding testing and use of the Pre-release Software, including error or bug reports.
If Licensee has been provided the Pre-release Software pursuant to a separate written agreement, then Licensee's use of the Pre-release Software is also governed by that agreement. Notwithstanding anything in this EULA to the contrary, if Licensee is located outside the United States, Licensee will return or destroy all unreleased versions of the Pre-release Software within 30 days of the completion of Licensee's testing of the Pre-release Software if that date is earlier than the date scheduled for K-Secure's first commercial shipment of the publicly released (commercial) software.
SURVIVAL OF DISCLAIMERS.
The exclusions of warranties and liability limitations shall survive the termination of this EULA, howsoever caused; but this survival shall not imply or create any continued right to use the Licensed Software after termination of this EULA.
Licensee shall not ship, transfer, or export Licensed Software into any country or use Licensed Software in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions, or regulations (collectively the "Export Laws.") If the Licensed Software is identified as export controlled items under the Export Laws, Licensee represents and warrants that Licensee, and Licensee's employees who will use the Licensed Software are not a citizen, or otherwise located within, an nation embargoed by the United States (including without limitation: Iran, Syria, Sudan, Cuba, Libya and North Korea), and that Licensee, and Licensee's employees who will use the Licensed Software, are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Licensed Software are granted on condition that Licensee complies with the Export Laws, and all such rights are forfeited if Licensee fails to comply with the Export Laws.
GOVERNING LAW, VENUE AND JURISDICTION.
This EULA is subject to, and will be governed by and construed in accordance with the substantive laws in force of the State of California. Any action arising under, relating to or connected with this EULA or the use of the Licensed Software will be filed only in an appropriate court located in Santa Clara County, California, and the parties irrevocably consent and submit to the exclusive personal jurisdiction of such courts for such purposes. This EULA will not be governed by the conflict of law rules of any jurisdiction, or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
INTELLECTUAL PROPERTY OWNERSHIP.
The Licensed Software and any authorized copies that Licensee makes are the intellectual property of, and are owned by, K-Secure, and by third parties whose intellectual property has been licensed by K-Secure. The structure, organization, and code of the Licensed Software are the valuable trade secrets and confidential information of K-Secure and such third parties. The Licensed Software is protected by law, including without limitation, the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly provided in this EULA, Licensee is not granted any intellectual property rights in the Licensed Software.
RESERVATION OF RIGHTS.
K-Secure reserves all rights not expressly granted to Licensee by this EULA. The rights granted to Licensee are limited to K-Secure's intellectual property rights, and to the intellectual property rights of third parties licensed by K-Secure. All rights are reserved under the copyright laws of the United States. K-Secure Technologies, LLC.
COMPLETE AGREEMENT and BINDING EFFECT.
This EULA constitutes the entire agreement between the Licensee and K-Secure relating to the Licensed Software, and it supersedes all prior or contemporaneous representations, discussions, undertakings, communications, agreements, arrangements, advertisements, and understandings regulating the Licensed Software. This EULA is binding on and made for the benefit of the parties and their successors and permitted assigns.
This EULA may only be modified, supplemented or amended by a writing signed by an authorized officer of K-Secure.
If any provision of this EULA is determined by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.
No failure or delay by K-Secure in exercising its rights or remedies shall operate as a waiver unless made by K-Secure’s specific written notice. No single or partial exercise of any right or remedy of K-Secure shall operate as a waiver or preclude any other, or further, exercise of that, or any other right, or remedy.
U.S. GOVERNMENT USERS.
The Licensed Software and its Documentation qualify as "commercial items," as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R.12.212 and 48 C.F.R. 227.7202-1 through
227.7202-4, K-Secure will provide to the Government end user, the Licensed Software and its Documentation with only those rights set forth herein that apply to
non-governmental customers. Use of the Licensed Software and its Documentation
constitutes agreement by the Government entity that the Licensed Software
and its Documentation are commercial, and constitutes acceptance of the rights
and restrictions herein. The Licensed Software Contractor/Manufacturer is K-Secure Technologies, LLC. or its applicable licensors.
For U.S. Government End Users, K-Secure agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this EULA.
PROOF OF COMPLIANCE.
Within 30 calendar days after request from K-Secure, or K-Secure's authorized representative, Licensee will provide full documentation, and certify under penalty of perjury, that Licensee's use of any and all Licensed Software is in conformity with this EULA.
If Licensee breaches this EULA, and fails to cure any breach within 30 calendar days after request from K-Secure, or K-Secure's authorized representative, K-Secure may terminate this EULA, whereupon all rights granted to Licensee shall immediately cease. Furthermore, upon termination, Licensee shall return to K-Secure all copies of the Licensed Software, or verify in writing that all copies of the Licensed Software have been destroyed.
Software distributed under the License is distributed on an "AS IS" basis, WITHOUT WARRANTY OF ANY KIND, either express or implied. See the License for the specific language governing rights and limitations under the License.