IMPORTANT: READ THESE TERMS AND CONDITIONS BEFORE DOWNLOADING, INSTALLING AND/OR USING THE LICENSED SOFTWARE. THESE TERMS AND CONDITIONS APPLY WHEN LICENSEE IS DOWNLOADING, INSTALLING, COPYING, ACCESSING, CLICKING ON AN “ACCEPT” BUTTON, OR OTHERWISE USING THE LICENSED SOFTWARE (AS SUCH TERM IS DEFINED BELOW). LICENSEE AGREES TO THESE TERMS AND CONDITIONS, WHICH TERMS SUPERSEDE AND REPLACE ANY SHRINKWRAP OR CLICKWRAP AGREEMENT TERMS THAT ACCOMPANY THE LICENSED SOFTWARE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF LICENSEE, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND LICENSEE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS, OR IF YOU DO NOT HAVE SUCH AUTHORITY: (A) DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK ON AN “ACCEPT” BUTTON, OR USE THE LICENSED SOFTWARE, AND (B) PROMPTLY RETURN ANY UNUSED MEDIA, DOCUMENTATATION, OR OTHER RELATED MATERIALS SUPPLIED BY OR ON BEHALF OF AEROFS, FOR A REFUND OF THE AMOUNT PAID; AND (C) IF THE LICENSED SOFTWARE WAS DOWNLOADED, DESTROY ALL COPIES OF THE LICENSED SOFTWARE.
AeroFS has developed and owns a software file sharing and syncing service that will sync files loaded into a local AeroFS shared folder across multiple computers and devices, including a Team Server based on appropriate network connectivity and access control lists. This service is enabled by the following client and server components:
The service includes all user documentation relating to the foregoing, as well as updates and enhancements as and when provided by AeroFS. The components described above are collectively referred to as the “Licensed Software”.
The Licensed Software is customarily downloadable from the AeroFS website, and is licensed on a trial/evaluation basis, a subscription basis, or both. The software components of the Licensed Software are available and licensed to Licensee in object code form only, and any user documentation components are available in electronic form only.
These terms and conditions form an agreement (the “Agreement”) between AeroFS and you. “We”, “AeroFS” or “Licensor” means Air Computing, Inc., a Delaware corporation, doing business at 635 High Street, Palo Alto, CA 94301.”You” or “Licensee” means the person or entity that is authorized by this Agreement to use the Licensed Software. This Agreement, together with an Order Form (if applicable), and any other documents that are referenced in these terms and conditions, applies to and governs Your use of the Licensed Software.
AeroFS may provide Licensee an order form that contains details regarding Licensee’s use of the Licensed Software (the “Order Form”). An Order Form may be a separate document, or it may be an online form (which may be prepopulated). In either case, (a) the Order Form will refer to these License Terms and Conditions, and (b) Licensee agrees to comply with the additional terms, if any, set forth on the Order Form. However, if there is a conflict between the terms of the Order Form and these License Terms and Conditions, the Order Form terms will be controlling for the applicable order. Any preprinted terms on any Licensee purchase order or similar document are rejected.
Unless AeroFS provides an Order Form to Licensee (either as a separate document or an online form), Licensee’s use of the Licensed Software will be governed exclusively by these License Terms and Conditions. In such event, AeroFS is willing to grant Licensee a license to use the Licensed Software according to these License Terms and Conditions, only on the conditions that Licensee accept all of the terms set forth below.
Part A describes each party’s rights and obligations relating to an evaluation (or similar use) of the Licensed Software. Part B describes each party’s rights and obligations relating to all other licenses of the Licensed Software. Any provisions in Part B with general applicability (e.g., Section 15 (“Miscellaneous”) will apply equally to both Parts A and B.
1. General. Unless an Order Form specifies that Licensee has obtained the Licensed Software on a subscription basis, or if no Order Form applies, the license granted hereunder is an “Evaluation License” and is subject to the terms of this Section 1. If there is a conflict between the terms of this Agreement generally and the terms of this Part A, as they pertain to Licensee’s use of the Licensed Software under the Evaluation License, the terms of this Part A will control.
2. Evaluation License Grant. Subject to the terms and conditions of this Agreement, AeroFS hereby grants to Licensee a limited, royalty-free, nonexclusive, terminable, non-sublicenseable, and nontransferable license to download, install, access, display, run, and use the Licensed Software, solely for Licensee’s internal business purposes limited to evaluation of the Licensed Software (the “Purpose”). Licensee agrees to use the Licensed Software only for the Purpose, and to comply with the license restrictions set forth in Section 4 (“Restrictions”) of Part B below.
3. Evaluation License Term. The license granted in Section 2 above commences on the date on which AeroFS first makes the Licensed Software available to Licensee for the Evaluation License, and unless earlier terminated in accordance with the terms of this Agreement, the Evaluation License will continue for no longer than the time specified in the applicable license key provided by AeroFS (the “Evaluation Term”). The Evaluation Term is generally no more than thirty (30) days. The Licensed Software may contain an automatic termination feature that will render the Licensed Software non-functional at the end of the Evaluation Term. Without limiting the generality of the foregoing,
4. Termination. Either party has the right to terminate the Evaluation License for any reason or for no reason, immediately upon written notice to the party; and any continued use of the Licensed Software following the Evaluation Term will be subject to the other terms and conditions of this Agreement, including Licensee’s obligation to pay any and all fees to AeroFS when due. Sections 5, 8, 9, and 10 of this Part A and Section 15 of Part B will survive the expiration or early termination of the Evaluation License.
5. Effect of Expiration or Early Termination of Evaluation License. Licensee’s right to use the Licensed Software pursuant to the Evaluation License will terminate automatically at the end of the Evaluation Term. At such time, Licensee must either immediately cease all use of the Licensed Software, or purchase a commercial license, which will be subject to the payment of AeroFS’ then-current fees and, if applicable, execution of an Order Form incorporating the terms and conditions set forth herein (or such other agreement terms and conditions that are mutually acceptable to AeroFS and Licensee). As soon as practicable following any termination or expiration of this Agreement (and in no event more than ten (10) business days thereafter), Licensee agrees to (i) destroy or return to AeroFS all copies of the Licensed Software, including any copies of computer programs on magnetic media and any written materials, and (ii) delete all copies of the Licensed Software from all computer systems under Licensee’s control. Upon request by AeroFS, Licensee will certify in writing to Licensee’s compliance with this Section 5.
6. Support. With regard to Evaluation Licenses, Licensee acknowledges and agrees that AeroFS may, but will not be required to, provide support and maintenance to Licensee regarding the operation and use of the Licensed Software, including the provision of any Licensed Software enhancements, updates, or upgrades. If Licensee requires any onsite installation services, Licensee agrees to reimburse AeroFS’ expenses incurred while performing any such installation or support services, including travel, food, and lodging expenses.
7. Reports. In partial consideration of the Evaluation License, Licensee agrees to provide AeroFS with periodic data and reports reasonably requested by Licensor, including: (i) a description of the results of Licensee’s use and evaluation of the Licensed Software, including any defects found in the Licensed Software and any information necessary for AeroFS to evaluate such defects, and (ii) any recommendations by Licensee for changes or modifications to the Licensed Software.
8. AeroFS’ Right to Use Licensee’s Evaluation and Data. Licensee agrees that AeroFS has and will continue to have the unrestricted right to use, in any manner and for any purpose, any information resulting from Licensee’s use and evaluation of the Licensed Software. Such information will include: suggested changes, modifications, corrections and/or improvements to the Licensed Software. Without limiting Sections 10 (“Warranty Disclaimers for Evaluation Licenses”) and 8 (“Limitation of Liability for Evaluation Licenses”) of this Part A, as well as Section 8 (“Intellectual Property Rights”) of Part B, AeroFS will have the right to use, at its sole discretion, all such information, including (but not limited to) use by incorporation of such information into computer programs and documentation for assignment, license, or other transfer to third parties, without any duty to account to Licensee.
9. Warranty Disclaimers for Evaluation Licenses. THE LICENSED SOFTWARE IS PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. AEROFS, ON BEHALF OF ITSELF AND ITS LICENSORS. EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW, ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. AEROFS ON BEHALF OF ITSELF AND ITS LICENSORS. FURTHER DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE LICENSED SOFTWARE. LICENSEE INSTALLS AND USES THE LICENSED SOFTWARE AT ITS OWN DISCRETION AND RISK AND WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULT FROM THE DOWNLOAD, INSTALLATION, OR USE OF THE LICENSED SOFTWARE. THE LICENSED SOFTWARE IS NOT DESIGNED, INTENDED, OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. AEROFS SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
10. Limitation of Liability for Evaluation Licenses. WITH REGARD TO THE EVALUATION LICENSE OR ANY BETA SOFTWARE PROVIDED HEREUNDER THE FOLLOWING LIMITATION AND EXCLUSION OF LIABILITY TERMS APPLY: TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL AEROFS OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING BUT NOT LIMITED TO DIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL AND INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE EVALUATION LICENSES OR THE USE, THE RESULTS OF USE, OR THE INABILITY TO USE THE LICENSED SOFTWARE, EVEN IF AEROFS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER AEROFS NOR ITS LICENSORS WILL BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY CLAIM OR DEMAND AGAINST LICENSEE BY ANY OTHER PARTY. LICENSEE AGREES THAT IT WILL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING ITS DATA, BY PERIODIC BACKUP OR OTHERWISE, USED IN CONNECTION WITH THE LICENSED SOFTWARE.
Subject to the terms and conditions of this Agreement, including without limitation the terms and conditions set forth in an Order Form (if applicable), which terms and conditions are incorporated herein by reference, Licensor hereby grants to Licensee during the applicable license terms set forth on the Order Form, or if not set forth thereon, for a period of one (1) year from the date on which the Licensed Software is first made available to Licensee (the “Term”), a limited, fee-bearing, nonexclusive, terminable, non-sublicenseable, and nontransferable license to download, install, access, display, run, and use the Licensed Software, solely for Licensee’s internal business purposes, throughout the territory, if any, specified in the Order Form.
Subject to the terms and conditions of this Agreement, during the Term, the Licensed Software may be used by “Authorized User(s) on an unlimited basis, unless otherwise set forth in the Order Form. Each account associated with an individual email address of an Authorized User (“Authorized User Account”) may be used by only one (1) Authorized User. Any use of an Authorized User Account by more than one (1) individual is expressly prohibited. Licensee will be liable for all use of and access to the Licensed Software by any Authorized Users and all activity that occurs under its Licensee’s account, including without limitation, any activity occurring under any Authorized User Account. Without limiting the foregoing, and subject to the terms and conditions of this Agreement, any Authorized Users who are customers of Licensee may use and access the Licensed Software solely for the purpose of exchanging files between such customer and Licensee and not with any third party. If Licensee wishes to grant Licensed Software access to additional Authorized Users, the parties will execute an additional Order Form applicable to such additional usage, including any additional Fees required thereby.
Licensee acknowledges that the Licensed Software and its structure, organization, source code and related user documentation constitute valuable trade secrets of AeroFS and its suppliers. Accordingly, except as expressly permitted under Section 1 of this Part B (if at all), Licensee will not, and will not permit any third party to:
The parties may execute separate Order Forms from time to time during the term of this Agreement, pursuant to which Licensee may procure additional licenses. License renewals may also be consummated by payment of renewal invoices in accordance with AeroFS’ then-current processes. AeroFS will make the Licensed Software available to Licensee promptly after execution of an Order Form. “Delivery” means the date on which the Licensed Software is first made available to Licensee, including by download. The Licensed Software will be made available in electronic form only, unless the applicable Order Form specifically states otherwise Licensee is responsible for installing the Licensed Software on its own computer equipment, except to the extent that the parties agree for AeroFS to provide such services under an Order Form. The Licensed Software is deemed irrevocably accepted upon Delivery.
5.1 Fees. In consideration of the licenses granted herein, Licensee will pay AeroFS the fees set forth in the Order Form (the “Fees”) in accordance with the terms of this Agreement. The Fees due for the then-current Term will be invoiced to Licensee at the beginning of each Term. All Fees will be paid within the number of days set forth in the Order Form, or otherwise, within thirty (30) days following the date of AeroFS’ invoice. In the event that any Fees are not paid within such time period, such unpaid Fees will bear interest at a rate equal to the lesser of 1.5% per month or the maximum interest rate allowed by applicable law, from the date due until paid.
5.2 Taxes. All charges and Fees provided for in this Agreement are exclusive of any taxes, duties, or similar charges imposed by any federal, state, provincial, or local government. Licensee will pay or reimburse AeroFS for all sales, use, personal property, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes on the net income of AeroFS).
5.3 Expenses. Licensee will reimburse AeroFS for any expenses incurred in connection with any on-site services performed for Licensee or any of its Affiliates, including without limitation, expenses incurred in connection with travel, lodging, and food. All expenses will be paid net thirty (30) days from the date of invoice.
During the Term, Licensee will maintain complete, accurate and detailed records regarding the number, location, email addresses, and identity of all Authorized Users, servers, and other licensed installations of the Licensed Software. Upon prior written notice to Licensee, AeroFS or its representatives may conduct an audit on Licensee’s premises for the purpose of reviewing Licensee’s compliance with the terms of this Agreement. All audits will be conducted at AeroFS’ expense, except that if the results reveal an underpayment of five percent (5%) or more, Licensee will also reimburse AeroFS for the reasonable cost of the audit. In lieu of such audit, and upon request of AeroFS at any time, Licensee will certify, in writing, Licensee’s compliance with the terms of this Agreement.
7.1 AeroFS’ Rights. This Agreement provides Licensee limited rights to use the Licensed Software. As between AeroFS and Licensee, all right, title, and interest, including without limitation, all intellectual property rights, in and to the Licensed Software, all copies thereof, and all upgrades, updates, improvements, or enhancements of the foregoing will belong exclusively to and remain with AeroFS and its licensors. Except as expressly provided herein, no other right or license to any of AeroFS’ technology, copyrights, patents, trademarks, or other intellectual property is granted to Licensee. AeroFS, on behalf of itself and its licensors, reserves all rights not expressly granted in this Agreement. The Licensed Software is licensed, not sold. There are no implied licenses hereunder; AeroFS and its licensors reserve all rights not expressly granted to Licensee.
7.3 Licensee’s Rights. Subject to and without limiting the foregoing, Licensee retains all right, title, and interest in and to any Licensee content, materials, and data generate using the Licensed Software (“Licensee Materials”). Licensee, not AeroFS, will have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Licensee Materials, and AeroFS will not be responsible or liable for the deletion, correction, destruction, damage, or loss of Client Materials. Licensee agrees to regularly back up the Licensee Materials.
8.1 Confidential Information Defined. "Confidential Information" means any information disclosed by one party (“Discloser”) to the other party (“Recipient”), either directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as "Confidential," "Proprietary" or some similar designation, or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed thirty (30) days) after the oral disclosure, or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Confidential Information may also include information disclosed to Discloser by third parties. Confidential Information includes, without limitation: technical data, trade secrets, know-how, research, product or service ideas or plans, software code and designs, algorithms, developments, inventions, patent applications, processes, formulas, techniques, mask works, engineering designs and drawings, hardware configuration information, and non-public business information Notwithstanding any failure to so identify it, however, all of the Licensed Software and all documentation relating thereto will be the Confidential Information of AeroFS. Recipient’s obligations under this Section 8 will not, however, apply to any Confidential Information which: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Discloser; (ii) becomes publicly known and made generally available after disclosure by Discloser to Recipient through no action or inaction of Recipient; (iii) is already in Recipient’s possession at the time of disclosure by Discloser, as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Discloser’s Confidential Information, as shown by documents and other competent evidence in the receiving Recipient’s possession.
8.2 Non-Use and Non-Disclosure. Recipient agrees not to use Discloser’s Confidential Information for any purpose except to exercise Recipient’s rights and perform its obligations under this Agreement. Recipient agrees not to disclose Discloser’s Confidential Information to any third parties or Recipient’s employees, except to those employees with a need to know, and who have complied with Section 8.3 below. In the event that Recipient or any person to whom Recipient or Recipient’s representatives transmits or has transmitted Confidential Information (as permitted under this Agreement) become legally compelled (by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or otherwise) to disclose any Discloser Confidential Information, Recipient will provide Discloser with prompt written notice so that Discloser may seek a protective order or other appropriate remedy, or both, or waive compliance with the provisions of this Agreement. In the event that Discloser is unable to obtain a protective order or other appropriate remedy, or if Discloser so directs Recipient, Recipient will furnish only that portion of the Discloser’s Confidential Information that Recipient is advised by written opinion of its counsel is legally required to be furnished by Recipient, and Recipient will exercise Recipient’s commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information.
8.3 Maintenance of Confidentiality. Recipient agrees to protect the secrecy of and avoid disclosure and unauthorized use of Discloser’s Confidential Information, and will take at least those measures that Recipient takes to protect its own confidential information of a similar nature and will ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Discloser’s Confidential Information to such employees. Recipient will, except as otherwise expressly authorized by the disclosing party, not make any copies or duplicates of any Discloser Confidential Information. Any Discloser Confidential Information that has been furnished by Discloser to Recipient in connection with this Agreement will be promptly returned or destroyed by Recipient, accompanied by all copies thereof, within ten (10) days after (a) the termination of this Agreement or (b) Discloser’s written request.
8.4 Remedies. Recipient acknowledges and agrees that Recipient’s obligations set forth in this Section 8 are necessary and reasonable in order to protect Discloser, Discloser’s trade secrets, and Discloser’s business. Due to the unique nature of the Discloser’s Confidential Information, Recipient further acknowledges and agrees that monetary damages may be inadequate to compensate Discloser for any breach by Recipient of the covenants and agreements set forth in this Section 8. Accordingly, the parties each acknowledge and agree that any such violation or threatened violation may cause irreparable injury to Discloser and, in addition to any other remedies that may be available, in law, in equity or otherwise, Discloser will be entitled to obtain injunctive relief against the threatened breach of this Section 8 or the continuation of any such breach by Recipient.
9.1 Authority. Each party warrants to the other that: (a) it has the full corporate right, power and authority to enter into this Agreement and perform its obligations hereunder; and (b) when executed and delivered, this Agreement will constitute a legal, valid and binding obligation enforceable against it in accordance with its terms.
9.2 Software. AeroFS warrants to Licensee that for a period of thirty (30) days from delivery, the Software, as made available to Licensee and when used as permitted hereunder, will perform substantially in accordance with the applicable user documentation therefor. If during this period, Licensee notifies AeroFS of a non-conformity, AeroFS will, at its own expense and as its sole obligation and Licensee’s exclusive remedy (a) examine the Software for such non-conformity, and if the non-conformity is reproducible, (b) use commercially reasonable efforts to correct the non-conformity or provide a work-around, or, if AeroFS reasonably determines that it is unable to do so, AeroFS may terminate this Agreement as to the affected Software (in which event, the license to use such Software will terminate) and refund to Licensee a pro rata portion of the license fees (excluding expenses) actually paid for the non-conforming item of Software, pro-rated to the end of the then-current term. This Section 9.2 states AeroFS’ entire liability and Licensee’s sole remedy for any non-conformity or other performance malfunction in the Software.
9.3 Virus. The term “virus” means any computer code intentionally designed to (a) disrupt, disable, harm, or otherwise impede in any manner the proper operation of a computer program or computer system or (b) damage or destroy any data files residing on a computer system without the user’s consent. AeroFS will use commercially reasonable efforts in screening the Software before delivery, to reduce the possibility of the existence of a virus. If AeroFS performs such screening, but Licensee is able to demonstrate that the Software, as and when supplied by AeroFS, is the source of a virus introduced into Licensee’s computing environment, AeroFS’ sole obligation will be to deliver a new copy or copies of the Software free of the identified virus, at no charge to Licensee. Licensee acknowledges that not all viruses can be detected by such programs and, therefore, AeroFS does not represent or warrant that the Software will be free of viruses. In addition, to mitigate the risk or effect of a virus, Licensee also assumes responsibility for running a current version of commercially available antivirus software in Licensee’s computing environment.
9.4 Certain Exclusions and Limitations. AeroFS does not warrant that Software is or will be error-free, uninterrupted or meet Licensee’s specific requirements, or that all deficiencies or defects will be corrected. AeroFS will have no warranty obligation under this Section 9 or otherwise if Licensee uses the Software other than in an environment intended or recommended by AeroFS, or for abuse, misuse, accident or neglect, or for failure to use the Software in accordance with its user documentation and this Agreement. Provision of a correction will not extend the original warranty period. Software may contain functionality designed to enable Licensee’s compliance with applicable laws and regulations. Such functionality is provided (if at all) as a convenience, and AeroFS disclaims liability for Licensee’s non-compliance with laws and regulations applicable to Licensee in the conduct of Licensee’s business.
9.5 Disclaimers. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 9.1 ABOVE, THE LICENSED SOFTWARE IS PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. AEROFS, ON BEHALF OF ITSELF AND ITS LICENSORS. EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW, ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. AEROFS ON BEHALF OF ITSELF AND ITS LICENSORS. FURTHER DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE LICENSED SOFTWARE. LICENSEE INSTALLS AND USES THE LICENSED SOFTWARE AT ITS OWN DISCRETION AND RISK AND WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULT FROM THE DOWNLOAD, INSTALLATION, OR USE OF THE LICENSED SOFTWARE. THE LICENSED SOFTWARE IS NOT DESIGNED, INTENDED, OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. AEROFS SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
EXCEPT FOR AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 (“INDEMNITY”) OF THIS PART B, AND EXCEPT FOR A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 (“CONFIDENTIALITY”) OF THIS PART B, OR LICENSEE’S BREACH OF SECTION 3 (“LICENSE RESTRICTIONS”) OF THIS PART B, OR ANY DAMAGES CAUSED BY LICENSEE IN CONNECTION WITH LICENSEE MATERIALS, INCLUDING PURSUANT TO SECTION 7.3 (“LICENSEE’S RIGHTS”) OF THIS PART B, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF SYSTEM AVAILABILITY, LOSS OF COMPUTER RUN TIME, LOSS OF BUSINESS INFORMATION, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED SOFTWARE (OR ANY ACCOMPANYING DOCUMENTATION), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE AGREES THAT IT WILL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING ITS DATA, BY PERIODIC BACKUP OR OTHERWISE, USED IN CONNECTION WITH THE LICENSED SOFTWARE. EXCEPT FOR AMOUNTS PAYABLE PURSUANT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 (“INDEMNITY”) OF THIS PART B, AND EXCEPT FOR A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 (“CONFIDENTIALITY”) OF THIS PART B, OR LICENSEE’S BREACH OF SECTION 3 (“LICENSE RESTRICTIONS”) OR ANY DAMAGES CAUSED BY LICENSEE IN CONNECTION WITH LICENSEE MATERIALS, INCLUDING PURSUANT TO SECTION 7.3 (“LICENSEE’S RIGHTS) OF THIS PART B, IN NO EVENT WILL EITHER PARTY'S TOTAL LIABILITY TO THE OTHER PARTY FOR DAMAGES EXCEED THE AMOUNTS PAID OR PAYABLE TO AEROFS HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE LAST CAUSE OF ACTION AROSE. THE PARTIES ACKNOWLEDGE THAT THIS IS A REASONABLE ALLOCATION OF RISK AND THAT IN THE ABSENCE OF SUCH LIMITATIONS AND EXCLUSIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.
11.1 By AeroFS. AeroFS will defend Licensee against any claim, demand, suit, or proceeding made or brought against Licensee by a third party to the extent alleging that the use of the Software as permitted hereunder infringes a copyright or misappropriates a trade secret of such third party (a “Claim”), and will indemnify and hold Licensee harmless from and against any damages, attorney fees, and legal costs finally awarded against Licensee to the extent directly arising out of such Claim. As a condition to the foregoing indemnity, Licensee will: (a) promptly give AeroFS written notice of such Claim; (b) give AeroFS sole control of the defense and settlement of such Claim (provided that AeroFS may not settle any Claim against Licensee without your prior written consent if the settlement requires Licensee’s admission of or incurring a liability); and (c) provide to AeroFS all requested assistance, at AeroFS' expense, in the defense of the Claim.
11.2 Exceptions. AeroFS will have no obligation to indemnify Licensee for any Claim under Section 11.1 to the extent that the Claim results from: (a) modifications to the Software made by a party other than AeroFS, if the infringement or misappropriation would not have occurred but for such modifications; (b) the combination, operation, or use of the Software with equipment, devices, software, systems, or data not supplied by AeroFS, if the infringement or misappropriation would not have occurred but for such combination, operation, or use; (c) Licensee’s failure to use updated or modified Software provided by AeroFS that would avoid infringement or misappropriation; (d) Licensee’s failure to stop using the Software after receiving written notice to do so from AeroFS in order to avoid infringement or misappropriation; or (e) Licensee’s use of the Software other than as authorized by this Agreement, or other breach of this Agreement. Licensee will indemnify and hold AeroFS harmless from and against any and all claims against AeroFS arising out of or relating to any of the exceptions set forth in this Section 11.2.
11.3 Mitigation. If use of the Software is, or in AeroFS' reasonable opinion is likely to be, subject to a Claim under Section 11.1, AeroFS may, at its sole option and at no additional charge to Licensee: (a) procure for Licensee the right to continue using the Software; (b) replace or modify the Software so that it is non-infringing and substantially equivalent in function to the original Software; or (c) if AeroFS determines that options (a) and (b) above would not be feasible despite AeroFS' reasonable efforts, AeroFS may terminate this Agreement as to the affected Software (in which event, the license to use such Software will terminate) and refund to Licensee a pro rata portion of the license fees (excluding expenses) actually paid for the non-conforming item of Software, pro-rated to the end of the then-current term.
11.4 Sole Remedy. THIS SECTION 11 SETS FORTH AEROFS’ SOLE AND EXCLUSIVE OBLIGATIONS, AND LICENSEE’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND BY THE SOFTWARE.
12.1 Compliance. Licensee represents and warrants to AeroFS that all access and use of the Licensed Software (including all data and content stored therein or transmitted thereby) by or on behalf of Licensee, its Authorized Users, and its Affiliates will comply with all applicable laws, rules, regulations, and judicial decrees, including without limitation all data protection legislation applicable to such access and use, and will not violate the rights of any third party.
12.2 Export Control. The Licensed Software is subject to the export control laws of the United States. Licensee will comply with all applicable laws (U.S. and international) that apply to the Licensed Software, and will not ship, transfer, or export the Licensed Software into any country, or use the Licensed Software in any fashion, prohibited by the United States Export Administration Act or Regulations or any other export laws, restrictions, or regulations. Licensee represents and warrants that it will comply with the U.S. Export Administration Regulations and other laws and regulations governing exports in effect from time to time. Licensee will be solely responsible for obtaining all licenses and permits necessary for any installation, access, or use of the Licensed Software outside the United States.
13.1 Term. The term of this Agreement will commence on the Effective Date and continue for the period described as the “Initial Term” in the Order Form (the “Initial Term”) and will thereafter automatically renew for additional periods described in the Order Form as “Renewal Terms” (each, a “Renewal Term;” the Initial Term, together with any Renewal Term, will be collectively referred to herein as the “Term”), unless terminated in accordance with the terms and conditions of this Agreement.
13.2 Prevention of Renewal. At any time after the expiration of the first Renewal Term, the parties may prevent any subsequent renewal of the Agreement upon written notice to the other party no later than thirty (30) days prior to the expiration of the then-current Term.
13.3 Termination. If either party defaults in the performance of any material provision of this Agreement, then the other party may give written notice to the defaulting party that if the default is not cured within thirty (30) days, the Agreement will be terminated. If the non-breaching party gives such notice and the default is not cured during the thirty (30) day period, then the Agreement will automatically terminate at the end of that thirty (30) day period. Notwithstanding the foregoing, AeroFS may immediately terminate this Agreement and the rights granted hereunder in the event of any breach or alleged breach by Licensee of Section 3 (“License Restrictions”) of this Part B.
13.4 Effect of Termination; Survival. Upon any expiration or termination of this Agreement, Licensee will immediately cease all use of the Licensed Software and uninstall, erase, and destroy all copies of the Licensed Software (or return to AeroFS upon AeroFS’ request). Sections 3 (“License Restrictions”); 5 (“Fees and Billing”) (to the extent not satisfied during the Term), 7 (“Intellectual Property Rights”), 8 (“Confidentiality”), 9 (“Warranty Disclaimers”), 10 (“Limitation of Liability”), 11 (“Indemnity”), 12 (“Compliance; Export Control”), 13.4 (“Effect of Termination”), and 15 (“Miscellaneous”) will survive any expiration or termination of this Agreement.
Subject to compliance with your payment obligations under this Agreement, AeroFS will provide technical support (“Support”) during its regular business hours: 9:00 am to 6:00 pm Pacific Time, Monday through Friday, excluding observed holidays. Support will be provided by one or more of the following methods: e-mail (firstname.lastname@example.org) and Web-based ticketing (through support.aerofs.com). Support includes: (a) assistance related to questions on the installation and operational use of the Software; (b) assistance in identifying and verifying the causes of suspected errors in the Software; and (c) providing workarounds for identified Software errors or malfunctions, where reasonably available to AeroFS.
15.1 Choice of Law, Venue, and Jurisdiction. This Agreement will be governed by the laws of the State of California, without reference to conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of Santa Clara County, California, and the parties consent to the personal and exclusive jurisdiction of these courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the transactions contemplated by this Agreement. The Uniform Computer Information Transactions Act (“UCITA”) will not apply to this Agreement or any Schedule regardless of when and howsoever adopted, enacted and further amended under the laws of the State of California or any other state. If UCITA is adopted and enacted in the State of California or any other state and, as a result of such adoption and enactment or any subsequent amendment thereto, the parties are required to take any action to effectuate the result contemplated by this Section 15.1, including amending this Agreement, the parties agree to take such action as may be reasonably required, including amending this Agreement accordingly.
15.2 Severability. If any provision of this Agreement, or portion thereof, is found to be invalid, unlawful or unenforceable to any extent, the parties will negotiate in good faith amendments to this Agreement to reflect the original intent of the parties as closely as possible. Such invalid provision or portion thereof will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
15.3 No Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. Except as expressly stated in this Agreement, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
15.4 U.S. Government Restricted Rights. If the Licensed Software is licensed to the United States government or any agency thereof, then the Licensed Software will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Licensed Software and any accompanying documentation by the U.S. Government will be governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement.
15.5 Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement (except for provisions relating to payment obligations) if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the reasonable control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, failures of the Internet, failure of telecommunications systems, earthquakes, fire and explosions.
15.6 Marketing. Each party may refer to the other party by trade name and trademark, use the other party’s trademarks, and may briefly describe the other party’s business, in its marketing materials, customer references, promotions, and web sites, with the prior written consent of the other party, in each case.
15.7 Assignment. Neither party may assign this Agreement without the other party’s prior written consent, provided, however, that AeroFS may assign this Agreement without Licensee’s prior written consent to any entity that acquires all or substantially all of the business or assets of AeroFS, whether by merger, reorganization, acquisition, sale or otherwise. Any assignment made in conflict with this provision will be void, and this Agreement will benefit and bind the permitted successors and assigns of the parties.
15.8 Relationship. Nothing in this Agreement will be deemed to constitute a joint venture, partnership, agency, representative, or employment relationship between the parties. This Agreement will not be construed as authority for either party to act for the other party in any capacity or to make commitments of any kind for the account of, or on behalf of, the other party except to the extent expressly set forth in this Agreement.
15.9 Notices. All notices or reports permitted or required under this Agreement will be in writing and will be delivered in person, mailed by first class mail, postage prepaid, (registered or certified) or by overnight courier, or sent by telecopy or fax with confirming copy sent by mail or courier as set forth above, to the party to receive the notice at the address set forth at the beginning of this Agreement or such other address as either party may specify in writing in accordance with this Section 15.9. All such notices will be effective upon receipt.
15.10 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
15.11 Headings; Construction. Section, exhibit, addendum, and schedule headings are for ease of reference only and do not form part of this Agreement. As used herein, the term “including” means “including but not limited to”.
15.12 Independent Contractor. Neither party will, for any purpose, be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
15.13 Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement. This Agreement will not be construed against any party by reason of the drafting or preparation thereof.
15.14 Entire Agreement. This Agreement (including these AeroFS Standard License Terms and Conditions, the Order Form and any and all exhibits or addenda attached hereto) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. No modification or amendment of any provision of this Agreement will be effective unless in writing and either signed or accepted electronically by the party against whom the modification or amendment is to be asserted.
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