APPGUARD® LICENSE AGREEMENT (“LICENSE AGREEMENT”)
1. AGREEMENT: Pursuant to the terms and conditions of this License Agreement, APPGUARD INC. shall grant to qualified AOL Members (each, a “LICENSEE”) a non-exclusive, non-transferable license to use TechFortress powered by AppGuard® (the “Software”), and related documentation (the “License”) with the functionality of the Software described on the applicable product information pages on www.appguardus.com. The scope of the License shall be as described on the applicable websites from which the product can be purchased and/or downloaded.
2. PAYMENT: The Software is being provided to LICENSEE on the payment terms specified on the applicable websites from which the product can be purchased and/or downloaded.
3. RESTRICTED USE: Each copy of the Software is licensed for the number of activations or users indicated on the applicable websites from which the product can be purchased and/or downloaded. If the Licensee is a legal entity, use is further limited to that legal entity, and if the Licensee is an individual, use is limited to the household of the individual. LICENSEE agrees that APPGUARD INC. or its licensors retain all exclusive right, title, interest and ownership in and to the Software, components and related documentation and all derivative works, modifications, and extensions thereto, no matter by whom created, as well as any patent, trademark or copyrights associated with the Software, components and all derivative works, modifications, and extensions thereto and related documentation. In the event any derivative works, components, modifications, and extensions of the Software or documentation do not fall within the specifically enumerated works that constitute works made for hire under the applicable copyright or patent laws, LICENSEE hereby, on its own behalf and on behalf of any entity that it is contracting with, irrevocably, expressly and automatically assigns all right, title and interest worldwide in and to such works to APPGUARD INC., including, without limitation, all copyright, patent rights, trade secrets, trademarks, moral rights and all other applicable proprietary and intellectual property rights. LICENSEE may use the Software for its personal use only and may not use the Software as part of a hosted, leased or subscription service for the benefit of any third party. LICENSEE agrees that any Third Party Programs (as defined below), are not to be used except as an integrated component of the Software and any Third Party Program application development interfaces may not be used for any purpose. LICENSEE will not copy, translate, modify, decompile, disassemble, reverse engineer or adapt the Software except as specifically authorized under applicable law or by APPGUARD INC. in writing. All rights not specifically granted hereunder are reserved to APPGUARD INC..
4. WARRANTY: The Software is provided “AS IS” with no warranties. APPGUARD INC. at its sole discretion will provide updates and fixes, if any, as they become available. ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, TO LICENSEE, OR ANY OTHER PARTY, FOR SOFTWARE AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE HEREBY DISCLAIMED IN THEIR ENTIRETY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTIES FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, OR AGAINST LATENT DEFECTS. APPGUARD INC. SPECIFICALLY DENIES ANY IMPLIED OR EXPRESS REPRESENTATION THAT THE SOFTWARE WILL (a) FIT LICENSEE’S REQUIREMENTS; (b) OPERATE IN COMBINATIONS WHICH MAY BE SELECTED FOR USE BY LICENSEE; (c) OPERATE UNINTERRUPTED OR ERROR-FREE OR PROVIDE OR FACILITATE AN ADEQUATE DEFENSE AGAINST MALWARE, VIRUS OR OTHER INTRUSIONS OR DATA THEFT OR UNAUTHORIZED DISCLOSURE; OR (d) HAVE ALL DEFECTS CORRECTED. IT IS LICENSEE’S RESPONSIBILITY TO PROVIDE ADEQUATE HARDWARE AND SOFTWARE EQUIPMENT NECESSARY TO ENSURE THE PROPER FUNCTIONING OF THE SOFTWARE. THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, WHERE ANY FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO SIGNIFICANT PROPERTY OR DATA LOSS OR DISCLOSURE, DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL DAMAGE ("HIGH RISK ACTIVITIES"). ACCORDINGLY, APPGUARD INC., ITS LICENSORS AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. LICENSEE AGREES THAT LICENSOR AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF THE SOFTWARE IN SUCH APPLICATIONS.
5. METHOD OF DELIVERY: The Software, as well as all future program and documentation enhancements to the Software and patches or updates for error corrections, will be delivered by electronic download or other form determined by APPGUARD INC..
6. INDEMNITY:
(a) Indemnity. If an action is brought by a third party against LICENSEE claiming that the Software infringes a patent or copyright of a third party, APPGUARD INC. will defend LICENSEE at APPGUARD INC.’s expense and, subject to this Section and Section 8, pay the damages and costs finally awarded against LICENSEE in the infringement action, but only if (1) LICENSEE notifies APPGUARD INC. promptly upon learning that the claim might be asserted; (2) APPGUARD INC. has sole control over the defense of the claim and any negotiation for its settlement or compromise; and (3) LICENSEE takes no action that, in APPGUARD INC.’s judgment, is contrary to APPGUARD INC.’s interest.
(b) Alternative Remedy. If a claim described in Section 6(a) may be or has been asserted, LICENSEE will permit APPGUARD INC., at APPGUARD INC.’s option and expense, and as the sole and exclusive remedy of LICENSEE to (1) procure the right to continue using the Software; or (2) replace or modify the Software to eliminate the infringement while providing materially equivalent functionality..
7. NO CONSEQUENTIAL DAMAGES: IN NO EVENT WILL APPGUARD INC. OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS BE LIABLE FOR (a) 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 (b) FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON LICENSEE’S CLAIMS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, USE OF MONEY OR USE OF THE SOFTWARE, FAILURE OF SOFTWARE, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS) ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH APPGUARD INC. OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY LICENSEE FOR THE SPECIFIC SOFTWARE PRODUCT THAT DIRECTLY CAUSED THE DAMAGE FOR A PERIOD OF SIX MONTHS BEFORE SUCH CLAIM. THIS SECTION WILL APPLY EXCEPT WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY.
8. CONFIDENTIALITY: LICENSEE acknowledges that the Software incorporates confidential and proprietary information developed or acquired by or licensed to APPGUARD INC. and agrees to take all reasonable precautions necessary to safeguard the confidentiality of the Software. LICENSEE shall not use or permit others to use the Software beyond the scope permitted herein or disclose the Software to any third party. Confidential information includes without limitation, source code, object code, interfaces, APIs, dashboards, and all components of the Software. LICENSEE agrees that in the event it breaches or threatens a breach of this Section, APPGUARD INC, may seek injunctive relief in a court of competent jurisdiction without posting bond or foregoing any other rights it may have.
9. TERMINATION: APPGUARD INC. may terminate this License Agreement, upon reasonable notice and without judicial or administrative resolution, if LICENSEE breaches any term or condition hereof. This License Agreement will terminate automatically if LICENSEE ceases to be an AOL Member or is no longer an authorized user of the Software in APPGUARD INC.’s reasonable judgment. Upon the termination of this License Agreement for any reason, all rights granted to LICENSEE hereunder cease, and (a) LICENSEE shall no longer be authorized to use or possess the Software; and (b) Software license keys shall be terminated and LICENSEE shall no longer be able to use or access the SOFTWARE. The provisions of Sections 3, 6, 7, 8, 9, 10, 11, and 12 will survive the termination of this License Agreement.
10. ASSIGNMENT: LICENSEE shall not assign, delegate or otherwise transfer this License Agreement or any of its rights or obligations hereunder without APPGUARD INC.’s prior approval.
11. COMPLIANCE WITH LAWS: LICENSEE shall carry out the transactions contemplated hereby and shall otherwise deal with the Software in conformity with all applicable laws, rules, and regulations of all governmental authorities, including, without limitation, the Export Administration Act, and shall obtain all permits and licenses required in connection with the license, installation, or use of the Software.
12. MISCELLANEOUS: All notices or approvals required or permitted under this License Agreement must be given in writing. Any waiver or modification of this License Agreement will not be effective unless executed in writing and signed by APPGUARD INC.. This License Agreement will bind LICENSEE’s successors-in-interest. This License Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware. If any provision of this License Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this License Agreement unless APPGUARD INC. in good faith deems the unenforceable provision to be essential, in which case APPGUARD INC. may terminate this License Agreement effective immediately upon notice to LICENSEE. Except for payment obligations hereunder, neither party shall be responsible for delays or failures in performance resulting from acts reasonably beyond the control of that party. This License Agreement constitutes the complete and entire statement of all conditions and representations of the agreement between APPGUARD INC. and LICENSEE with respect to its subject matter and supersedes all prior writings, representations, warranties or understandings. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
ACCEPTANCE OF THE TERMS
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, USING THE SOFTWARE AND/OR SIGNIFYING YOUR ACCEPTANCE TO THIS ELECTRONIC LICENSE AGREEMENT, YOU AGREE TO THE TERMS OF THIS ELECTRONIC AGREEMENT ON YOUR OWN BEHALF AND ON BEHALF OF ANY LICENSEE ENTITY (“LICENSEE”) ON WHOSE BEHALF YOU OBTAINED THE SOFTWARE. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE LICENSEE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS AND DO NOT HAVE THE AUTHORITY AS PROVIDED HEREIN, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE SOFTWARE.