END USER LICENSE AGREEMENT

 

Copyright © 2014 AlertSite®

 

This End User License Agreement (this "Agreement") is by and between Boca Internet Technologies, Inc., a Florida corporation ("AlertSite") and you.  The DéjàClick™ by AlertSite® software and any other software, data, services, documentation, scripts, or local computer files included within, accessed or otherwise obtained or made available in conjunction with or through this package, including any upgrades, enhancements, modifications, updates, revisions, and substitutions thereto are collectively referred to as the "Software".  YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING, OR OTHERWISE USING THE SOFTWARE.  IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE SOFTWARE.

 

1.  Grant and Term of License.

AlertSite grants you a personal, non-exclusive, non-transferable, royalty-free, and revocable right to install and use the Software based upon the terms and conditions set forth in this Agreement.  The Software may be installed on any computers or network servers under your control for your own non-commercial use or benefit.  This license shall continue in effect until otherwise terminated by AlertSite or immediately upon any failure by you to comply with the provisions set forth in this Agreement.

 

2.  Ownership; Intellectual Property.

(i)  The Software is the property of AlertSite and is protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries.  AlertSite owns all rights, title, and interest in and to the Software, portions thereof and all subsequent copies thereof regardless of the form or media, and of the software and services provided through or in conjunction with the Software, including without limitation all Intellectual Property Rights.  "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.

(ii)  This Agreement grants you no right, title, or interest in any intellectual property owned or licensed by AlertSite, including (but not limited to) the Software and AlertSite’s trademarks, and creates no direct relationship between you and AlertSite other than that of licensor to licensee under this Agreement.  You agree to abide by all applicable laws and other laws, as well as any additional copyright notices or restrictions contained in this Agreement and in the Software source files.

(iii)  You grant AlertSite permission to use and incorporate into the Software your ideas or comments without further compensation.  All rights to patents, copyrights, trademarks and trade secrets in the Software or any modifications to it shall be and remain with AlertSite.  All rights not expressly granted pursuant to this Agreement are reserved by AlertSite.

 

3.  Restrictions and Terms of Use. 

(i)  Except as otherwise expressly provided by this Agreement, the Software may not be copied, reproduced, translated or reduced to any electronic medium or machine-readable form.

(ii)  The Software is made available to you for your non-commercial use only. You may use it at work or at home, but you may not sell, lease, loan, sublicense, derive income from, or exploit the Software or any use or provision of the Software (or access thereto) or any of its parts or any information or services associated with or derived from the Software for any commercial purpose, whether for direct commercial or monetary gain or otherwise.

(iii)  You may not use, disclose, modify, reproduce or distribute the Software except as expressly permitted in this Agreement.

(iv)  Except to the extent that restrictions on these activities may be prohibited under applicable law, you may not modify, alter, adapt, translate, reverse engineer, decompile, disassemble or create derivative works based on the Software or any portion thereof, or otherwise attempt to derive source code from the Software .

(v)  You may not alter, remove, efface or otherwise obscure any copyright notices, trademarks, or other proprietary rights or notices, labels, or marks affixed to or contained within or accessed in conjunction with or through the Software.

(vi)  You may not redirect, emulate, or alter the network communication links, URLs or protocols used by the Software for communicating with AlertSite’s monitoring services for any purpose or by any techniques now known or hereafter developed.

(vii)  You may not use the Software in any manner that could damage, disable, overburden, or impair AlertSite's monitoring services.

(viii)  You may not use the Software in any manner that could interfere with any other party's use of the Software or its services. 

(ix)  You may not use any feature of the Software in any manner inconsistent with AlertSite’s Terms of Use located at http://www.alertsite.com/terms.shtml.  AlertSite may amend or revise AlertSite's Terms of Use at any time. You agree to be bound by the Terms of Use as in effect from time to time. Please review the Terms of Use regularly. Your continued access and use of the Software following the posting of any such changes shall automatically be deemed your acceptance of the same.

(x)  You may not use the Software in connection with the operation of nuclear facilities, life support, or other mission critical application where human life or property may be at stake.  You acknowledge that the Software is not designed for such purposes and that its failure in such cases could lead to death, personal injury, or severe property or environmental damage for which AlertSite is not responsible.

(xi)  Use of the Software by or on behalf of the United States Government constitutes acknowledgement that the Software is deemed to be "commercial software" as that term is used in the Federal Acquisition Regulation system.  Rights of the United States shall not exceed the minimum rights set forth in FAR 52.227-19 for "restricted computer software."  All other terms and conditions of this License Agreement apply.

(xii)  You may not use or export the Software, directly or indirectly, in violation of applicable U.S. laws or regulations or in any unlawful manner, or for any unlawful purpose.

 

4.  Support and Services.

AlertSite may elect to provide you with support and/or software upgrades, enhancements, or modifications (collectively, "Support") for the Software, in its sole discretion, and may terminate such Support at any time without notice to you.  AlertSite may change, suspend, or discontinue any aspect of the Software or related services at any time, including the availability of any Software feature, database, or content.  AlertSite may also impose limits on certain features and services or restrict your access to parts or all of the Software or services without notice or liability.

 

5.  Disclaimer of Warranties.

THE SOFTWARE AND ANY RELATED DATA OR SERVICES ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER.  ALERTSITE EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO AND WITHOUT LIMITATION, THE SECURITY, RELIABILITY, TIMELINESS, PERFORMANCE, ACCURACY, COMPLETENESS, OR ADEQUACY OF THE SOFTWARE OR ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, QUIET PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  ALERTSITE MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS.  ALERTSITE DOES NOT REPRESENT THAT THE SOFTWARE OR ANY DATA ACCESSED THEREFROM IS APPROPRIATE OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SOFTWARE AND ANY RELATED DATA OR SERVICE.  THE ENTIRE RISK AS TO THE QUALITY, USE AND PERFORMANCE OF THE SOFTWARE IS WITH YOU.  ALERTSITE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE SOFTWARE IS FREE OF INFECTION FROM ANY VIRUSES, WORMS, TROJAN HORSES, TRAP DOORS, BACK DOORS, EASTER EGGS, TIME BOMBS, CANCELBOTS OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.

 

6.  Limitation of Liability.

ALERTSITE SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY LOSS OR DAMAGE (INCLUDING LOSS OR DAMAGE INCURRED FROM THIRD PARTIES), ARISING OUT OF OR RELATED TO THE SOFTWARE OR ANY DATA ACCESSED THROUGH THE SOFTWARE.  INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES, DAMAGES FOR ANY LOSS OF PROFIT OR REVENUE, INJURY TO PERSON OR PROPERTY, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OR PERSONAL INFORMATION, EVEN IF ALERTSITE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.  SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES, SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.

 

7.  Indemnification.

You shall defend, indemnify and hold harmless AlertSite and its officers, directors, shareholders, employees, independent contractors, agents, representatives and affiliates from and against all claims and expenses, including, but not limited to, attorneys' fees and costs, made by any third party arising out of, or attributable to (i) your breach or violation this Agreement, (ii) your access or use of the Software, and/or (iii) your violation of applicable laws or your violation of any rights of another person or entity.  Your indemnification obligations shall survive the termination of the license provided by this Agreement.

 

8.  Severability; No General Waiver.

If any provision of this Agreement is contrary to, prohibited by or deemed invalid under applicable law or regulation, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder of this Agreement shall not be invalidated thereby and shall be given full force and effect so far as possible.  If any provision of this Agreement may be construed in two or more ways, one of which would render the provision invalid or otherwise voidable or unenforceable and another of which would render the provision valid and enforceable, such provision shall have the meaning which renders it valid and enforceable.  The failure of AlertSite to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

 

9.  AlertSite's Remedies.

AlertSite may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, AlertSite shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement.

 

10.  Governing Law; Jurisdiction; Arbitration.

This Agreement is to be governed and construed in accordance with the internal laws of the State of Florida, without regard for principles of conflicts of laws.  Any civil action, claim, dispute or proceeding arising out of or relating to this Agreement, except for an injunctive action regarding a breach or threatened breach of any provision of this Agreement by you, shall be referred to final and binding arbitration, before a single arbitrator, under the commercial arbitration rules of the American Arbitration Association in Broward County, Florida.  The arbitrator shall be selected by you and AlertSite, and if you and AlertSite are unable to reach agreement on selection of the arbitrator within thirty (30) days after the notice of arbitration is served, then the arbitrator shall be selected by the American Arbitration Association.  Judgment upon any award rendered by the arbitrator shall be final, binding and conclusive upon you and AlertSite and your and AlertSite's respective administrators, executors, legal representatives, successors and assigns, and may be entered in any court of competent jurisdiction.

 

11.  Headings.

The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of this Agreement, and shall not limit or otherwise affect in any way the meaning or interpretation of this Agreement.

 

12.  Export Restrictions. 

You acknowledge that the SOFTWARE PRODUCT is of U.S. origin.  You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.

 

13.  Entire Agreement.

This Agreement represents the entire understanding and agreement between you and AlertSite with respect to its subject matter, and supersedes all other negotiations, understandings and representations (if any), made by and between you and AlertSite.  Any waiver of any provision of this Agreement will be effective only if in writing and signed by AlertSite.  Furthermore, some of the features of the Software are designed to be used in conjunction with AlertSite's monitoring services.  Accordingly, your use of the Software in conjunction with AlertSite's monitoring services is also defined by AlertSite's Terms of Use located at http://www.alertsite.com/terms.shtml.  In the event of any conflict between the terms and conditions of this Agreement and those in the Terms of Use, the terms and conditions of this Agreement will control such conflict, except to the extent that the Terms of Use may impose additional restrictions and liabilities on your actions.

 

WPB 770094.V31