End User License Agreement
This End User License Agreement (this “Agreement”), is a legally binding agreement between VENDOR, Vendendi Corporation d/b/a EZ TECH ASSIST, (“Licensor”) and you, the person that has ordered the VENDOR hardware and software from Licensor (“Licensee”).
LICENSOR PROVIDES THE VENDOR HARDWARE AND SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY EITHER CLICKING THE “ACCEPT” BUTTON OR USING THE HARDWARE AND SOFTWARE YOU ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO YOU AND YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE HARDWARE AND/OR SOFTWARE.
1. License Grant and Scope. Subject to and conditioned upon Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a personal, non-exclusive, non-transferable, non-sublicensable, limited license during the term to use, the Hardware and Software, solely as set forth in this license This license grants Licensee the right, exercisable solely by itself and no one else. Any additional users shall be required to purchase and license a separate license from Licensor.
2. Use Restrictions. Licensee may use one Hardware device and one instance of the Software per individual user login identification and password. Each individual user is required to purchase a license to access and use the Hardware and Software.
(a) Licensee shall not modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Hardware and/or Software or any part thereof;
(b) combine the Hardware and/or Software or any part thereof with, or incorporate the Hardware and/or Software or any part thereof in, any other programs;
(c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Hardware and/or Software or any part thereof;
(d) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Hardware and/or Software, including any copy thereof;
(e) copy the Software, in whole or in part;
(f) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Hardware and/or Software or any features or functionality of the Hardware and/or Software, to any third party for any reason, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;
(g) use the Hardware and/or Software in violation of any federal, state or local law, regulation or rule; or
(h) use the Hardware and/or Software for purposes of competitive analysis of the Hardware and/or Software, the development of a competing hardware and/or software product or service or any other purpose that is to the Licensor’s commercial disadvantage.
3. Responsibility for Use of Hardware and/or Software. Licensee is responsible and liable for all uses of the Hardware and/or Software through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software by itself or by any other person to whom Licensee may provide access to or use of the Hardware and/or Software, whether such access or use is permitted by or in violation of this Agreement.
4. Compliance Measures.
(a) The Hardware and/or Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against use of the Hardware and/or Software:
- Licensee shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features.
(b) On Licensor’s written request, Licensee shall conduct a review of its use the Hardware and/or Software and certify to Licensor in a written instrument that it is in full compliance with this Agreement.
5. Maintenance and Support. Licensor will provide hardware and software maintenance and support services in accordance with its then standard support program. Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, “Updates”) as Licensor makes generally available to all licensees of the Hardware and Software then entitled to maintenance and support services. Licensee further agrees that all Updates will be deemed Software, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide some or all Updates via download from a website designated by Licensor and that Licensee’s receipt thereof shall require an internet connection, which connection is Licensee’s sole responsibility. Licensor has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Hardware and/or Software Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.
6. Intellectual Property Rights. Licensee acknowledges and agrees that the Hardware and Software are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Hardware and Software under this Agreement, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Licensor reserves and shall retain its entire right, title and interest in and to the Hardware and Software and all intellectual property rights arising out of or relating to the Hardware and Software, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Hardware and/or Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s intellectual property rights in the Hardware and/or Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce its intellectual property rights.
7. Payment. All License fees and support fees, if any, are payable in advance to Licensor and are non-refundable. Any renewal of the license or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full.
8. Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in effect for the term set forth in the order form as agreed upon by Licensor and Licensee and will remain in effect until expiration or terminated as set forth herein (the “Term”).
(b) Licensee may terminate this Agreement by ceasing to use and disabling all applications of the Hardware and Software
(c) Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Licensor provides written notice thereof.
(d) Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
(e) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and delete or disable all applications of the Hardware and/or Software. No expiration or termination shall affect Licensee’s obligation to pay all Licensee fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
9. Limited Warranties, Exclusive Remedy and Disclaimer.
(i) Each party to this Agreement represents and warrants that that it has the full right power and authority to enter into this Agreement and that they will comply with all laws and regulations applicable to the delivery and use of the Hardware and Software.
(ii) EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE THE HARDWARE AND SOFTWARE ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE HARDWARE AND LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
10. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO THE LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE HARDWARE AND SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION
OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION, OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) LICENSEE AGREES AND ACKNOWLEDGES THAT THE COMPUTER SECURITY THREAT IS EVOLVING AND THAT NO TOOLS CAN GUARANTEE THAT SECURITY BREACHES WILL NOT OCCUR. LICENSOR PROVIDES NO ASSURANCE THAT THE PRODUCTS WILL PROTECT AGAINST ALL COMPUTER VIRUS INFECTIONS, UNAUTHORIZED INTRUSIONS, IDENTITY THEFT, PRIVACY VIOLATIONS, SPYWARE, SPAM, OR OTHER FORMS OF HARMFUL ACTIVITY. ANY CHANGE IN THE OPERATING SYSTEM OR OTHER SOFTWARE OR CONFIGURATION OF LICENSEE’S HARDWARE MAY AFFECT THE PERFORMANCE AND OPERATION OF THE SOFTWARE PRODUCTS. ACCORDINGLY, IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO THE LICENSEE OR ANY THIRD PARTY FOR THE INTRODUCTION OF ANY MALICIOUS SOFTWARE, PROGRAM, OR CODE (INCLUDING, BUT NOT LIMITED TO, VIRUS, TROJANS, MALWARE, RANSOMWARE, ANY SPYWARE) THAT: (A) IS UNKNOWN OR UNDISCOVERED OR (B) BYPASSES LICENSOR’S HARDWARE AND/OR SOFTWARE.
(c) THE LIMITATIONS SET FORTH ABOVE SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
11. Export Regulation. The Hardware and/or Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export or release the Hardware and/or Software to, or make the Hardware and/or Software accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Hardware and/or Software available outside the US.
12. US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. § 2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
13. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of New Jersey.
(b) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Bergen County, New Jersey. The arbitration shall be governed by the laws of the State of New Jersey. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings.
Any award in an arbitration initiated under this clause shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. The prevailing party shall be entitled to an award of reasonable attorney fees. The award of the arbitrators shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
(c) If, for any reason, the foregoing Arbitration clause is deemed to be unenforceable, any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New Jersey in each case located in the County of Bergen, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non convenient. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. In any such legal suit, action or proceeding the prevailing party shall be entitled to recover all attorneys’ fees and costs, including through any appeals.
(d) Licensor shall not be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond Licensor’s reasonable control.
(e) All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on any order form (or to such other address as may be designated by a party from time to time in accordance with this Agreement.
(f) This Agreement, together with any order form, and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
(g) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this section is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(h) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(i) This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(j) If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(k) This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The order form and all related documents referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
(l) The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.