CAREFULLY READ THE FOLLOWING SOFTWARE LICENSE AGREEMENT! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON OR LEAVE THE WEBSITE.
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This SOFTWARE LICENSE Agreement (the “Agreement”), effective as of the date of acceptance by Licensee of the terms of this Agreement (the “Effective Date”), is by and between Trusona, Inc., a Delaware corporation, having its principal place of business at 8767 E Via de Ventura, Suite 275, Scottsdale, AZ 85258, USA (“Trusona”), and Licensee.
The parties agree as follows:
License Grant. Trusona hereby grants to Licensee a limited, non-exclusive, non-transferable, non-sublicensable evaluation license to download, install and use internally Trusona’s mobile applications for iOS and Android, as well as Trusona’s software development kits for iOS and Android (“Licensed Software”) for Licensee’s internal, non-commercial evaluation. Licensee shall not provide the Licensed Software to any third party.
2. Proprietary Rights
2.1. Ownership. The Licensed Software is licensed and not sold. Trusona retains all right, title, and interest in and to the Licensed Software, including any improvements, modifications and enhancements to it. Trusona may use suggestions and feedback from Licensee to improve its products and services free of charge to Trusona, for which Licensee hereby assigns to Trusona all right, title and interest in and to the suggestions and feedback, with no right, title and interest being retained by Licensee.
2.2. No Reverse Engineering. Licensee itself shall not, and Licensee shall not encourage or knowingly help anyone else to, reverse engineer, decompile, disassemble, redistribute, or create derivative works of, the Licensed Software, or attempt to do the same, other than as expressly permitted in this Agreement. If Licensee creates any derivative works of the Licensed Software, Licensee hereby assigns all right, title, and interest in and to those derivative works to Trusona. Licensee shall promptly notify Trusona if Licensee learns that anyone has violated or is attempting to violate this section.
3. Enforcement of Restrictions
Trusona has the right to inspect and enforce the restrictions and covenants contained in this Agreement at Licensee’s sole expense, and Licensee hereby agrees to promptly notify Trusona of any known violations of such restrictions.
4. Copyright and Marks
4.1. Copyright. The Licensed Software, including any documentation, media, packaging and illustrations, is copyrighted and constitutes Trusona’s valuable property. Licensee agrees that all physical manifestations of the Licensed Software will display Trusona’s copyright notice in a conspicuous manner. The Licensed Software is protected under United States, European and other jurisdictions’ copyright laws and international treaty provisions. Licensee will have a right to use the materials, provided copyright notices and acknowledgement of trade-marks are included, pursuant to the covenants herein. Licensee will include the following notice on any printed, electronic, online or packaged version of the Licensed Software, in any form whatsoever:
“Copyright © 2018 Trusona, Inc. All rights reserved.”
4.2. Trade-marks. Certain logos, product names and trade-marks owned by Trusona may be contained within the printed materials and electronic manifestations of the Licensed Software. Licensee will have no right to use such marks in its end-user applications except as set out in this Agreement.
5. Upgrades and Support
Other than Trusona’s obligation under Section 1, Trusona shall have no other obligations to provide updates or support services to Licensee. Obligations or expectations with regard to product upgrades, enhancements, support or remedies for errors, defects or deficiencies will be limited to those expressly set forth in a separate agreement between Trusona and Licensee. In the absence of such an agreement between the parties, Trusona will use reasonable efforts to provide ongoing support and remedies to identified errors and defects, on a time and material basis, at Trusona’s then current commercial rates.
6.1. Confidentiality. Licensee acknowledge that the existence of this Agreement, the terms and conditions hereof, the transactions contemplated hereby and other information, including, without limitation, customer, technical and financial information that they have received or will receive in connection with this Agreement, is considered private and confidential (the “Confidential Information”). Licensee will use reasonable diligence and in no event less than the degree of care which Trusona uses in respect their own confidential and proprietary information of like nature, to prevent the unauthorized disclosure, reproduction or distribution of such Confidential Information to any other individual, corporation or entity. Such Confidential Information will exclude:
(a) information that is already in the public domain;
(b) information already known to the receiving party, as of the date of the disclosure, unless the receiving party agreed to keep such information in confidence at the time of its original receipt;
(c) information hereafter obtained by the receiving party, from a source not otherwise under an obligation of confidentiality with the disclosing party;
(d) information that the receiving party is obligated to produce under order of a court of competent jurisdiction, provided that the receiving party promptly notifies the disclosing party of such an event so that the disclosing party may seek an appropriate protective order.
7. Term and Termination
7.1. Term. This Agreement will commence on the Effective Date, which will be on the date of Licensee’s agreement to these terms and continue in effect for no more than (90) ninety days, unless earlier terminated (the “Term”).
7.2. Termination for Convenience. Either party may terminate this Agreement at any time for any reason.
7.3. Effect of Termination. On termination of this Agreement: (i) the licenses and other rights granted to Licensee in this Agreement will terminate, and (ii) Licensee shall cease using and return or destroy all instances of the Licensed Software.
7.4. Survival. Provisions which by their nature are intended to survive the expiration or termination of this Agreement will survive the termination or expiration of this Agreement.
8. Warranty Disclaimer
THE LICENSED SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TRUSONA DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL OPERATION WITHOUT ERROR OR INTERRUPTION. TRUSONA EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING ALL WARRANTIES WHICH, BUT FOR THIS PROVISION, MIGHT ARISE FROM COURSE OF DEALING, CUSTOM, OR TRADE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
9. Exclusion of Liability
IN NO EVENT WILL TRUSONA BE LIABLE TO LICENSEE FOR ANY DAMAGES OF ANY TYPE ARISING FROM ANY CLAIM OR ACTION UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF TRUSONA HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
10.1. Equitable Relief. Licensee agrees that any breach of this Agreement by Licensee would cause irreparable damage, and that, in event of such breach, in addition to any and all remedies at law, Trusona will have the right to an injunction, specific performance or other equitable relief to prevent the continuous violations of the terms of this Agreement.
10.2. Governing Law. This Agreement will be governed by the laws of the State of Arizona without reference to conflict of law principles. All disputes arising out of or related to it, will be subject to the exclusive jurisdiction of the state and federal courts located in Arizona, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.
10.3. Export. Licensee shall comply with all applicable laws and regulations that may govern the export of the Licensed Software. Any use or disclosure of the Licensed Software by the United States government is subject to the restrictions set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 and the Commercial Computer Software – Restricted Rights clauses at FAR 52.227-19. Use or disclosure of the Licensed Software by the government of any other country is subject to that country’s restrictions of similar applicable laws.
10.4. Assignment. Licensee shall not assign this Agreement, directly or indirectly, by operation of law or otherwise, without the prior written consent of Trusona. Trusona may assign this Agreement to any party agreeing to be bound by its terms. This Agreement is binding on, and will inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempt to assign this Agreement other than as expressly permitted by this Agreement is void from its inception.
10.5. Notices. Notices are validly given on the confirmed receipt by Trusona addressed to the receiving party at the address below.
Notices to Trusona:
8767 E Via de Ventura, Suite 275
Scottsdale, AZ 85258
Attn: General Counsel
10.6. Force Majeure. Trusona will not be responsible for its failure to perform under this Agreement due to unforeseen circumstances or causes beyond its control, such as acts of God, wars, riots, embargoes, strikes, acts of civil or military authorities, fires, or floods.
10.7. Non-Waiver. The failure of either party to enforce any provision of this Agreement will not be construed to be a waiver of the right of that party to enforce that provision.
10.8. Severability. If any provision of this Agreement is held to be unenforceable in any respect, the unenforceability of that provision will not affect any other provision, but this Agreement will then be construed as if the unenforceable provision had never existed.
10.9. Headings. The parties agree that the section headings used in this Agreement are for reference only and will not be used to interpret this Agreement.
10.10. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document.
10.11. No Third-Party Beneficiaries. No other person or entity is a third-party beneficiary to this Agreement.
10.12. Attorneys’ Fees. The prevailing party is entitled to reasonable attorneys’ fees, costs, and related expenses arising out of any action to enforce this Agreement.
10.13. Modification; Entire Agreement. This Agreement may be modified only by a writing signed by an authorized representative of each party. This Agreement supersedes all proposals, oral or written, and all negotiations, conversations, and discussions between the parties relating to the subject matter of this Agreement.