ENDUSER SOFTWARE LICENSE AGREEMENT
Kloakr® CORPORATION AND/OR ITS AFFILIATES (“Kloakr®”) SPECIFIED IN THE ENTITLEMENT CONFIRMATION IS WILLING TO LICENSE THE LICENSED SOFTWARE TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE LICENSED SOFTWARE (REFERENCED BELOW AS “YOU” OR “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS Kloakr® SOFTWARE LICENSE AGREEMENT AND THE PRODUCT USE RIGHTS SUPPLEMENT (AS DEFINED BELOW) (COLLECTIVELY, THE “LICENSE AGREEMENT”). READ THE LICENSE AGREEMENT CAREFULLY BEFORE USING THE LICENSED SOFTWARE. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND Kloakr®. BY DOWNLOADING, INSTALLING, COPYING, CLICKING THE “I AGREE” OR “YES” BUTTON, OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR USING THE LICENSED SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THE LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE LICENSE AGREEMENT, CLICK THE “I DO NOT AGREE” OR “NO” BUTTON OR OTHERWISE INDICATE REFUSAL AND CEASE ANY AND ALL USE OF THE LICENSED SOFTWARE.
1. DEFINITIONS.
Unless otherwise defined in this License Agreement, capitalized terms will have the meaning given below and such capitalized terms may be used in the singular or in the plural, as the context requires.
“Collected Data” means certain information which Kloakr® may collect, retain, process, disclose and use in connection with Your use of the Licensed Software, or Your devices or systems with which the Licensed Software operates, and may include, but is not limited to, Personal Information about You, about Your employees, agents or contractors acting on Your behalf.
“Content Updates” means content, which may be provided from time to time, used by certain Kloakr® products and/or services to maintain the efficacy of the product, including but not limited to: any update to improve the performance or reliability of Kloakr® products. Content Updates may include content produced by the Licensed Software based on Your use of the Licensed Software.
“Documentation” means the user documentation, user manual, and release notes provided for the Licensed Software. Documentation may be delivered in a text file, printed form or published on a product Web page.
“Entitlement Confirmation” or “License Instrument” means one or more of the following applicable documents which further defines Your license rights to the Licensed Software and Your access to Maintenance, including, but not limited to: a Kloakr® license or maintenance certificate or a similar confirmation document issued by Kloakr®; or a written agreement between You and Kloakr®; or validation through an entitlement portal; or an authorized Kloakr® email confirmation; or an order confirmation receipt, that accompanies, precedes or follows this License Agreement.
“Licensed Software” means the Kloakr® software product, in object code form, accompanying this License Agreement, including any Documentation included in, or provided for use with, such software or that accompanies this License Agreement and Product Updates/Upgrades made available under Maintenance.
“Maintenance” or “Maintenance/Support” means the delivery of Product Updates/Upgrades and Content Updates to the Licensed Software, and may include access to technical support as defined in each particular Maintenance product.
“Personal Information” means personal data as defined by applicable data protection law, which may include without limitation names, e-mail address, contact details of designated users and contacts, IP addresses, etc., as may be provided by You to Kloakr® during Your, or Your users, use of the Licensed Software and Maintenance.
“Product Updates/Upgrades” or “Update” means any generally available update to the Licensed Software, including, but not limited to, an enhancement, fix or patch, Version Upgrades, Cross-Grades, and Content Updates delivered under a Maintenance product. “Version Upgrade” means any generally available version of the Licensed Software which replaces the prior version of the Licensed Software pursuant to Kloakr®’s then-current upgrade policies. “Cross-Grade” means choosing to replace the Licensed Software with a different Licensed Software title by exercising an option during your Maintenance term (i.e. to increase its functionality, and/or transfer it to a new operating system, hardware tier, or licensing meter).
“Product Use Rights” means usage rights, restrictions and terms specific to the Licensed Software.
“Use Level” means a quantity of licensed uses of the Licensed Software based on the license use meter and model (which may include operating system, hardware system, application or machine tier limitations, if applicable) by which Kloakr® measures, prices and licenses the right to use the Licensed Software and/or to access Maintenance. License use meter and model options are defined in the Product Use Rights Supplement. Use Level and applicable use meter or model is indicated in the applicable Entitlement Confirmation. Use Level applies to the corresponding Maintenance that You purchased for use with the Licensed Software.
2. TERM; TERMINATION.
The term of the licenses granted under this License Agreement shall be perpetual unless stated otherwise in the Product Use Rights Supplement or unless You have obtained the Licensed Software on a limited-term or a subscription basis in which case, Your rights to use such Licensed Software and any access to Maintenance shall end on the date indicated on the applicable Entitlement Confirmation and You shall cease use of the Licensed Software and access to Maintenance at the end of that term. Notwithstanding the foregoing, this License Agreement and access to Maintenance shall terminate upon Your breach of any material term of this License Agreement. Upon termination, You shall immediately stop using and destroy all copies of the Licensed Software.
3. OWNERSHIP/TITLE.
The Licensed Software is the proprietary property of Kloakr® and/or its licensors and is protected by patent, trademark, copyright, and other intellectual property laws. Kloakr® and its licensors retain any and all rights, title and interest in and to the Licensed Software, including in all copies, improvements, enhancements, modifications and derivative works of the Licensed Software. Your rights to use the Licensed Software shall be limited to those expressly granted in this License Agreement. All rights not expressly granted to You are retained by Kloakr® and/or its licensors.
4. THIRD PARTY PROGRAMS.
The Licensed Software may contain third party software programs (“Third Party Programs”) that are available under open source or free software licenses. This License Agreement does not alter any rights or obligations You may have under those open source or free software licenses. Notwithstanding anything to the contrary contained in such licenses, the disclaimer of warranties and the limitation of liability provisions in this License Agreement shall apply to such Third Party Programs. As a convenience to You, Kloakr® may from time to time provide a copy of, or access to, third party products or Web sites that are not available for licensing from Kloakr® (“Commercial Third Party Applications”), and which must be licensed by You directly from the applicable vendor of that Commercial Third Party Application or used in accordance with their posted terms of use. This License Agreement does not create any right for You to use or access the Commercial Third Party Applications. Kloakr® MAKES NO WARRANTIES AND ASSUMES NO LIABILITY WITH RESPECT TO ANY THIRD PARTY PROGRAMS OR COMMERCIAL THIRD PARTY APPLICATIONS.
5. LICENSE GRANT.
Subject to Your compliance with this License Agreement, Kloakr® grants to You the following rights: (i) a non-exclusive, non-transferable right to use the Licensed Software solely in support of Your internal business operations at the confirmed Use Level; and Certain Licensed Software may require registration in order to activate the Licensed Software. If You fail to complete the registration requirements, the Licensed Software features may become inoperable and You may be unable to use such features until You have completed registration.
6. PRODUCT USE RIGHTS SUPPLEMENT.
The Licensed Software may be subject to supplemental terms that define the Product Use Rights and which may be referred to as a “Product Use Rights Supplement” or “PUR Supplement.” The Product Use Rights Supplement is incorporated into this License Agreement by reference and is an integral part of this License Agreement. If the applicable version of the Licensed Software is not specifically listed on or through the above website or attached hereto, the Product Use Rights Supplement for the most recent prior version applies.
7. LICENSE RESTRICTIONS.
You may not, without Kloakr®’s prior written consent, conduct, cause or permit the: (i) use, copying, publishing, distribution, modification, rental, lease, sublease, sublicense, assigning or otherwise transferring of the Licensed Software except as expressly provided in this License Agreement; (ii) creation of any derivative works based on, or from the use of, the Licensed Software; (iii) reverse engineering, disassembly, decompiling, or other attempt to derive source code of the Licensed Software; (except to the extent (a) You may be expressly permitted to decompile by law and it is essential to do so solely in order to achieve interoperability of the Licensed Software with another software program, and (b) You have first asked Kloakr® to provide the information necessary to achieve such interoperability (subject to reasonable conditions and fees at Kloakr®’s discretion) and Kloakr® has not made such information available. Any such information supplied by Kloakr® and any information obtained by You by such permitted decompilation may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Licensed Software. Requests for such information should be directed to Kloakr® Enterprise Customer Care pursuant to Section 21.3); (iv) use of the Licensed Software in connection with service bureau, facility management, timeshare, service provider or like activity whereby You operate or use the Licensed Software for the benefit of a third party; (v) use of the Licensed Software by any party other than You or Your Consultants; (vi) use of a later version of the Licensed Software other than the version that accompanies this License Agreement unless You have separately acquired the right to use such later version through an Entitlement Confirmation; nor (vii) use of the Licensed Software not in compliance with the Use Level indicated in the applicable Entitlement Confirmation. If Kloakr® provides the Licensed Software (viii) embedded, incorporated or loaded onto a physical hardware device or (xi) made available for download to a designated physical hardware device, then the license is restricted to use on that device only. Additionally, you may not, (a) modify, block, circumvent or otherwise interfere with any authentication, license key or security measures in the Licensed Software (b) use or permit use of the Licensed Software for on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or aircraft communications systems, air traffic control, life support systems, human implantation, nuclear facilities or systems or weapons systems, or any other application known to You where product failure would lead to loss of life or catastrophic property damage, or in which the failure of the program could lead directly to death, personal injury, or severe physical or environmental damage.
8. MAINTENANCE RIGHTS AND RESTRICTIONS.
Kloakr® has no obligation under this License Agreement to offer a Maintenance product for the Licensed Software.
8.1. Maintenance and Renewals.
Any Maintenance purchased for the Licensed Software is subject to Kloakr®’s then- current Maintenance and renewal policies, including end-of-life notifications. Maintenance is made available only for the specific Licensed Software, for the Use Level, and Maintenance term stated in the applicable Entitlement Confirmation. You must purchase the same Maintenance product for the aggregate Use Level of the corresponding Licensed Software. Maintenance purchased for a certain Licensed Software product, may not be used for a different Licensed Software product. Maintenance must be uninterrupted and renewed before the end of the current Maintenance term, otherwise, to purchase Maintenance, You will be required to pay the applicable Maintenance fees from the end of the most recently paid Maintenance term to the start date of the new Maintenance term and You may be subject to additional costs in accordance with Kloakr®’s Maintenance policies, such as administrative and reinstatement costs. Maintenance must be purchased and renewed for the aggregate Use Level for the Licensed Software as indicated in all applicable Entitlement Confirmations. You must submit to Kloakr®, in writing, any request for a reduction in any Maintenance renewal quantity. Kloakr®, in its sole discretion, but acting reasonably, may accept a Maintenance order or renewal of a quantity less than the aggregate Use Level for the Licensed Software. To renew Maintenance for any Licensed Software for which the renewal was waived by Kloakr®, You may be required to pay Maintenance fees to cover the waived period before You may purchase a current Maintenance product. Any use of Maintenance without a valid Entitlement Confirmation is deemed a breach of this License Agreement.
8.2 Technical Support.
Technical support will only be provided if the Maintenance product You have purchased includes technical support for the particular Licensed Software. Technical support will be performed in accordance with the terms and conditions published on the Kloakr® web site under the then-current technical support policies.
8.3. Content Update Rights and Restrictions.
If Content Updates are included in the Maintenance product that You have purchased, You are granted the right to receive and use such Content Updates as and when they are made generally available, for the Maintenance term, and for the Use Level, indicated on the applicable Entitlement Confirmation. Content Updates shall also be subject to any accompanying terms and conditions, and in any absence of or conflict with such terms, Content Updates are subject to this License Agreement. This License Agreement does not otherwise give You the right to obtain or use Content Updates, and any unauthorized access to or use of Content Updates is deemed a breach of this License Agreement.
8.4. Product Updates/Upgrades Rights and Restrictions.
Product Updates/Upgrades to the Licensed Software may only be obtained for the Use Level indicated in the applicable Entitlement Confirmation(s). Any Product Updates/Upgrades to an existing license do not modify or alter Your Use Level and are provided under Kloakr®’s then-current applicable policies. Product Updates/Upgrades shall be subject to any accompanying Entitlement Confirmation and accompanying terms and conditions, otherwise the Product Updates/Upgrades are subject to this License Agreement.
9. LIMITED WARRANTY.
9.1. SOFTWARE PERFORMANCE WARRANTY.
Subject to Your compliance with the terms of this License Agreement, Kloakr® warrants that the Licensed Software, as delivered by Kloakr® and when used in accordance with the Documentation, will substantially conform to the Documentation for a period of ninety (90) days from delivery. If the Licensed Software does not comply with this warranty and such non-compliance is reported in writing by You to Kloakr® within the ninety (90) day warranty period, Kloakr® will do one of the following, selected at Kloakr®’s sole reasonable discretion: either (i) repair the Licensed Software, (ii) replace the Licensed Software with software of substantially the same functionality, or (iii) terminate this License Agreement and refund the relevant license fees paid for such non-compliant Licensed Software. The above warranty specifically excludes defects resulting from accident, abuse, unauthorized repair, modifications or enhancements, or misapplication. THE FOREGOING IS YOUR SOLE AND EXCLUSIVE REMEDY FOR Kloakr®’S BREACH OF THIS WARRANTY.
10. WARRANTY DISCLAIMERS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES SET FORTH ABOVE ARE YOUR EXCLUSIVE WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Kloakr® MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE LICENSED SOFTWARE, CONTENT UPDATES, UPDATES OR UPGRADES WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OR USE OF THE LICENSED SOFTWARE, CONTENT UPDATES, AND PRODUCT UPDATES/UPGRADES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU MAY HAVE OTHER WARRANTY RIGHTS, WHICH MAY VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
NOTWITHSTANDING ANY OTHER TERM IN THIS LICENSE AGREEMENT, Kloakr® MAKES NO REPRESENTATIONS NOR ASSUMES ANY OBLIGATIONS REGARDING, ARISING FROM OR RELATED TO THE LEGALITY OF MONITORING, INSPECTION, DECRYPTION AND/OR RE-ENCRYPTION OF CUSTOMER CONTENT IN ANY PARTICULAR JURISDICTION, AND YOU SHALL BE SOLELY RESPONSIBLE, AND Kloakr® SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT YOUR PROPOSED OR ACTUAL USE OF THE LICENSED SOFTWARE COMPLIES WITH APPLICABLE LAWS. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR SELECTING CONFIGURATIONS, POLICIES AND PROCEDURES IN THE LICENSED SOFTWARE THAT ARE CONFIGURABLE INCLUDING, WITHOUT LIMITATION, THE SELECTION OF FILTERED CATEGORIES AND WEB APPLICATION CONTROLS, AND FOR ASSURING THAT THE SELECTION (A) CONFORMS TO YOUR POLICIES AND PROCEDURES AND (B) COMPLIES WITH ALL APPLICABLE LAWS.
11. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS LICENSE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL Kloakr® OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS BE LIABLE TO YOU FOR (i) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF PROFITS, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME; OR (ii) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES WHETHER ARISING DIRECTLY OR INDIRECTLY OUT OF THIS LICENSE AGREEMENT, EVEN IF Kloakr® OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS HAS BEEN ADVISED SUCH DAMAGES MIGHT OCCUR. IN NO CASE SHALL Kloakr®’S LIABILITY EXCEED THE FEES YOU PAID FOR THE LICENSED SOFTWARE GIVING RISE TO THE CLAIM. NOTHING IN THIS LICENSE AGREEMENT SHALL OPERATE SO AS TO EXCLUDE OR LIMIT Kloakr®’S LIABILITY TO YOU FOR DEATH OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW. THE DISCLAIMERS AND LIMITATIONS SET FORTH ABOVE WILL APPLY REGARDLESS OF WHETHER OR NOT YOU ACCEPT THE LICENSED SOFTWARE OR PRODUCT UPDATES/UPGRADES.
YOU ACKNOWLEDGE AND AGREE THAT Kloakr® WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, LIABILITIES, SUITS, PROCEEDINGS, COSTS, OR EXPENSES, INCLUDING REASONABLE LEGAL EXPENSES OR FEES ARISING OUT OF, RESULTING FROM OR RELATING TO: (A) THE USE OF THE LICENSED SOFTWARE BY YOU OR BY THIRD PARTIES; (B) SECURITY BREACHES; (C) EAVESDROPPING, INTERCEPTION, FAILURE OF DELIVERY OR LOSS OF DATA SENT, STORED, OR RECEIVED WHILE USING THE LICENSED SOFTWARE; OR (D) USE OR LOSS OF YOUR SOFTWARE, INFORMATION OR MEMORY DATA CONTAINED IN, STORED ON, OR INTEGRATED WITH ANY SOFTWARE PROVIDED TO Kloakr® UNDER THIS LICENSE AGREEMENT. THESE LIMITATIONS SHALL APPLY EVEN IF Kloakr® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12. INDEMNITY.
You, on behalf of Yourself and Your agents, officers, directors, employees or affiliates shall defend and indemnify and hold Kloakr® and its affiliates, shareholders, employees, agents, and subcontractors harmless against all claims, losses, actions, damages, liabilities, suits, proceedings, costs, and expenses including reasonable legal expenses and fees arising out of, resulting from or relating to: (a) any breach of a representation or warranty made by You in this License Agreement; (b) Your failure to comply with any applicable laws or regulations; (c) Your modification of the Licensed Software, and any claim against Kloakr® in connection with any unauthorized installation, use, copying, access or distribution of any Licensed Software that Kloakr® has provided to You under this License Agreement; (d) any alleged infringement or misappropriation of any intellectual property rights of any third party based on or related to Licensed Software modifications not made by Kloakr®, (e) any alleged eavesdropping, interception, failure of delivery or loss of data sent, stored or received using the Licensed Software, and/or (f) Your breach of this License Agreement.
13. CONFIDENTIAL INFORMATION.
You may have access to information that is confidential to Kloakr® (“Confidential Information”) under this License Agreement. Confidential Information means all information of a confidential or proprietary nature, whether or not specifically labeled or identified as “confidential,” in any form or medium, and includes but is not limited to the Licensed Software, the terms and pricing for the Licensed Software, Collected Data, and any other information clearly identified as confidential or by its nature reasonably considered proprietary or confidential. You will hold Kloakr®’s Confidential Information in confidence and will not disclose the Confidential Information to any third party. You will use the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information as You use to protect Your own confidential information of a like nature. You will use the Confidential Information only as needed to exercise the licenses granted to You under this License Agreement. Confidential Information does not include any information that: (a) was rightfully in the possession of, or was known by, a party prior to its receipt from the other party, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of this License Agreement; (c) is rightfully obtained by a party from a third party, without an obligation to keep such information confidential; or (d) is independently developed by a party. You may disclose Confidential Information as required by law or court order, provided You notify Kloakr® in writing of the requirement for disclosure in advance, provide Kloakr® a reasonable opportunity to limit the scope of disclosure, and only disclose as much of the Confidential Information as is required by law and subject to foregoing limited scope.
14. DATA COLLECTION.
To the extent that Kloakr® processes any Personal Information in accordance with Your use of the Licensed Software and/or Maintenance/Support, Kloakr® will be the Data Processor and You will be the Data Controller. You undertake to obtain all necessary consents, permits or licenses, and to comply with all applicable data protection legislation, in particular the Data Protection Directive (95/46/EC) or any successor legislation, with regards to the provision of Personal Information to Kloakr® in accordance with this License Agreement. Kloakr® shall process Personal Information as is necessary to (i) enable, optimize and provide the Licensed Software and/or Maintenance/Support to You and Your users, (ii) to administer and enforce its License Agreements with You, (iii) to make recommendations regarding usage of the Licensed Software, Maintenance/Support and other Kloakr® products and services, (iv) to improve and develop Kloakr®’s products and services including, without limitation, for security research and development, or threat detection and security reporting purposes, and (v) to generate statistical reports and analysis about use of the Licensed Software and/or Maintenance/Support (including analysis related to security trends and data patterns, and comparisons in Kloakr®’s aggregated install base) (collectively “Reports”). Kloakr® shall implement and maintain appropriate technical and organisational measures to protect the Personal Information processed under this License Agreement against accidental loss, destruction, damage, alteration or disclosure. You hereby consent for Kloakr® to transfer Personal Information, as maybe required to provide the Licensed Software and/or Maintenance/Support pursuant to this License Agreement, to the United States or other countries that may have different data protection laws than the region in which You are located and may be accessed by Kloakr® employees, contractors, partners and vendors for the purposes described above. Where transfers of Personal Information are made from the European Economic Area to outside the European Economic Area, You agree that Kloakr® will execute Standard Contractual Clauses on your behalf. In the event of a conflict between the clauses of this License Agreement and the Standard Contractual Clauses with respect to data processed under this License Agreement, the terms of the Standard Contractual Clauses will prevail to the extent of the conflict. Your acceptance of this License Agreement shall be treated as Your signature of the Standard Contractual Clauses.
15. AUDIT RIGHTS.
Kloakr® may audit Your use of the Licensed Software and Maintenance to verify that Your usage complies with applicable Entitlement Confirmation(s), including without limitation through collection and use of Collected Data, self-certifications, on-site audits and/or audits done using a third party auditor. An audit will be done upon reasonable notice and during normal business hours, but not more often than once each year unless a material discrepancy was identified during the course of a prior review. You agree to implement internal safeguards to prevent any unauthorized copying, distribution, installation, or use of, or access to, the Licensed Software. You further agree to keep records sufficient to certify Your compliance with this License Agreement, and, upon request of Kloakr®, provide and certify metrics and/or reports based upon such records and accounting for both numbers of copies (by product and version) and network architectures as they may reasonably relate to Your licensing and deployment of the Licensed Software. If Your usage of the Licensed Software or Maintenance is not compliant, You will promptly submit an order within thirty (30) days, at Manufacturer’s Suggested Reseller Price (MSRP), or as mutually agreed upon with Kloakr®, applicable to Your use of the Licensed Software or Maintenance in excess of Your entitlement rights including, but not limited to software license fees , new and lapsed Maintenance fees, and reinstatement costs. Lapsed Maintenance or excess subscription fees will be calculated at a minimum of one (1) year, unless an accurate calculation can be determined. Kloakr® reserves the right to charge interest at the rate of one and one-half percent (11⁄2%) per month or the highest interest rate allowed by law, whichever is lower, from the date on which such amount became due. Kloakr® shall bear the costs of any such audit, except where the audit demonstrates that the MSRP value of Your non-compliant usage exceeds five percent (5%) of the MSRP value of Your compliant deployments. In such case, in addition to purchasing appropriate licenses and Maintenance for any over-deployed Licensed Software, You shall reimburse Kloakr® for the costs for the audit.
16. SOFTWARE EVALUATION.
If the Licensed Software is provided to You for evaluation purposes and You have an evaluation agreement with Kloakr® for the Licensed Software, Your rights to evaluate the Licensed Software will be pursuant to the terms of such evaluation agreement. If You do not have an evaluation agreement with Kloakr® for the Licensed Software and if You are provided the Licensed Software for evaluation purposes, section 5, License Grant, is hereby replaced with the following terms and conditions. Kloakr® grants to You a nonexclusive, temporary, royalty-free, non-assignable license to use the Licensed Software solely for internal non-production evaluation subject to the applicable Product Use Rights. Such evaluation license shall terminate (i) on the end date of the pre-determined evaluation period, if an evaluation period is pre-determined in the Licensed Software or (ii) sixty (60) days from the date of Your initial installation of the Licensed Software, if no such evaluation period is pre-determined in the Licensed Software (“Evaluation Period”). The Licensed Software may not be transferred and is provided “AS IS” without warranty of any kind. You are solely responsible to take appropriate measures to back up Your system and take other measures to prevent any loss of files or data. The Licensed Software may contain an automatic disabling mechanism that prevents its use after a certain period of time. Upon expiration of the Licensed Software Evaluation Period, You will cease use of the Licensed Software and destroy all copies of the Licensed Software. All other terms and conditions of this License Agreement shall otherwise apply to Your evaluation of the Licensed Software.
17. U.S. GOVERNMENT COMMERCIAL LICENSE RIGHTS.
The Licensed Software and accompanying documentation is deemed to be “commercial computer software” and “commercial computer software documentation” respectively, as defined in DFAR Section 227-7202 and FAR 12.212 as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Licensed Software by the U.S. Government shall be solely in accordance with the terms of this License Agreement, and except as otherwise explicitly stated in this License Agreement all provisions of this License Agreement shall apply to the U.S. Government.
18. EXPORT REGULATION.
The export, re-export, or in-country transfer of the Licensed Software and related technical data and services (collectively “Controlled Technology”) is subject to the export laws and regulations of the U.S. and other jurisdictions including, but not limited to, the U.S. Export Administration Regulations, European Union Council Regulations, and Singapore Strategic Goods Control Act. The export or re-export of Controlled Technology in violation of the foregoing laws and regulations is strictly prohibited. Controlled Technology may also be subject to import, distribution, transfer or use restrictions requiring that You act prior to download or use of the Controlled Technology. Controlled Technology is prohibited for export or re- export to Cuba, North Korea, Iran, Syria, Sudan, the Crimea Region of Ukraine and to any other country or region subject to trade sanctions. You may not export any Controlled Technology related to the use or development of missiles or chemical, biological, and nuclear weapons. Furthermore, You may not export any Controlled Technology to any military entity, or to any other entity for any military purpose, unless subject to a valid license specifically permitting such export. You represent that You are neither located in, nor a resident or national of, any prohibited country or region. You further represent that You are not a sanctioned person or entity named on a U.S. or other government list (including, but not limited to, lists published by the U.S. Bureau of Industry and Security, U.S. Directorate of Defense Trade Controls, U.S. Office of Foreign Assets Control, European Union, and United Nations). You shall not, directly or indirectly, facilitate giving a sanctioned country or entity access to Controlled Technology. You agree that you will comply with all applicable export or import control laws and regulations and obtain appropriate U.S. and foreign governmental authorizations before exporting, re-exporting, importing, transferring or using any Controlled Technology. You represent and warrant to Kloakr® that You will comply with Title 15 of the US Code of Federal Regulations Subchapter C Part 762 and other applicable record keeping regulations of the U.S. and other jurisdictions (the “Record Keeping Requirements”) related to or arising from the subject matter of this License Agreement. Upon ten (10) business days’ notice, or as soon as practicable if required sooner by a government or regulatory official request, You shall provide Kloakr® with electronic copies (unless in a format as otherwise agreed by the parties) of all relevant records required to be retained by You pursuant to the Record Keeping Requirements.
19. PRODUCT MISUSE.
You may not use the Licensed Software in an electronic communications network that is used wholly or mainly for the provision of publicly available electronic communications services (“Public Network”) in a manner that violates the rights to privacy or freedom of expression as outlined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (collectively, “International Human Rights Standards”), of any individual user who directly accesses the Internet or otherwise transmits data through a Public Network, provided the foregoing shall not limit use of the Licensed Software in a Public Network to restrict, monitor, collect or process data accessed or transmitted by individual users based upon exceptions to the rights of privacy or freedom of expression that are recognized by International Human Rights Standards or authorized by local law or regulation.
20. SURVIVAL.
The following provisions of this License Agreement survive termination of this License Agreement: Definitions, License Restrictions and any other restrictions on use of intellectual property, Ownership/Title, Warranty Disclaimers, Limitation of Liability, U.S. Government Commercial License Rights, Export Regulation, Data Collection, Confidential Information, Survival, and General.
21. GENERAL.
21.1. ASSIGNMENT.
You may not assign the rights granted under this License Agreement, in whole or in part and whether by operation of contract, law or otherwise, without Kloakr®’s prior express written consent. Kloakr® may assign this License Agreement to any party.
21.2. GOVERNING LAW; SEVERABILITY; WAIVER.
If You are located in North America or Latin America, this License Agreement will be governed by the laws of the State of California, United States of America. If any provision of this License Agreement is found partly or wholly illegal or unenforceable, such provision shall be enforced to the maximum extent permissible, and remaining provisions of this License Agreement shall remain in full force and effect. A waiver of any breach or default under this License Agreement shall not constitute a waiver of any other subsequent breach or default.
21.3. ENTIRE AGREEMENT.
This License Agreement and any related Entitlement Confirmation are the complete and exclusive agreement between You and Kloakr® relating to the Licensed Software and Maintenance and supersede any previous or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter. This License Agreement prevails over any conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by You, even if signed and returned. This License Agreement may only be modified by an Entitlement Confirmation that accompanies or follows this License Agreement.
PRODUCT USE RIGHTS SUPPLEMENT
FOR Kloakr® MOBILE ENCRYPTION FOR iOS
This Product Use Rights Supplement (“Supplement”) contains additional terms and conditions for the Licensed Software licensed under the Kloakr® Software License Agreement between Kloakr® Corporation and/or its affiliates and You as the individual, the company, or the legal entity that will be utilizing the Licensed Software (referenced below as “You” or “Your”). The Kloakr® Software License Agreement and the Supplement are collectively referred to herein as the “License Agreement.” Capitalized terms used in this Supplement but not defined herein will have the meanings given in the Kloakr® Software License Agreement. To the extent there is a conflict between the terms and conditions of the Kloakr® Software License Agreement and this Supplement, the terms and conditions of this Supplement will take precedence.
BY DOWNLOADING, INSTALLING OR USING THE LICENSED SOFTWARE, YOU AGREE TO COMPLY WITH THE PRODUCT USE RIGHTS IN THIS SUPPLEMENT, IN ADDITION TO THE TERMS AND CONDITIONS OF THE Kloakr® SOFTWARE LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE PRODUCT USE RIGHTS APPLICABLE TO THE LICENSED SOFTWARE, DO NOT DOWNLOAD, INSTALL OR USE THE LICENSED SOFTWARE.
For purposes of this Supplement, the Licensed Software is: Kloakr® Mobile Encryption for iOS.
1. DEFINITIONS.
“User” means an individual person and/or device who is authorized by the licensee to use and/or benefits from the use of the software, or is the person and/or device who actually uses any portion of the product or service.
2. USE RIGHTS AND LIMITATIONS.
A. You may use the Licensed Software for the number of Users set forth in the Entitlement Confirmation.
3. Apple Requirements. If the Licensed Software is downloaded from the Apple iTunes App Store
(“App Store”), You acknowledge and agree to the following additional terms: (a) This License Agreement is between You and Kloakr® only, and not with Apple, and Apple has no liability for the Licensed Software and its content; (b) Your use of the Licensed Software is limited to use on an Apple-branded product running the iOS operating system that You own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service; (c) Apple has no obligation to furnish any maintenance and support services with respect to the Licensed Software; (d) in the event of any failure of the Licensed Software to conform to any applicable warranty that has not been disclaimed, (i) You may notify Apple, and Apple will refund the purchased price You paid through the App Store for the Licensed Software and (ii) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation with respect to the Licensed Software; (e) Apple is not responsible for any claims, losses, liabilities, damages, costs or expenses relating to the Licensed Software or Your possession and/or use of the Licensed Software, including, but not limited to (i) product liability or warranty claims; (ii) any claim that the Licensed Software fails to conform to any applicable legal or regulatory requirement and (iii) consumer protection or similar claims; (f) Apple is not responsible for investigating, defending, settling or discharging any third party claims that the Licensed Software or Your possession and use of the Licensed Software infringes such third party’s intellectual property right; (g) You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties; (h) should You have any questions concerning this License Agreement, or if You desire to contact Kloakr® for any reason, please due so via the contact us page at http://www.Kloakr®.com. You are responsible for complying with any applicable third party terms of agreement when using the Licensed Software; and (j) Apple and its subsidiaries are third party beneficiaries of this License Agreement; as a third party beneficiary, Apple will have the right to enforce this License Agreement against You.