READ CAREFULLY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT ("EULA").
1. GRANT OF LICENSE
Subject to all terms and conditions of this EULA, PHASE FIVE SYSTEMS grants to YOU a nonexclusive, non-transferable, non-sublicensable license to use the SOFTWARE PRODUCT (in executable format, and including any updates) solely for YOUR personal or internal business purposes, subject to the terms of this EULA. YOU agree to access and use the SOFTWARE PRODUCT only for YOUR internal purposes, but not for any other purposes.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
YOU may not, nor allow any third party to:
copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the SOFTWARE PRODUCT or any part thereof;
attempt to disable or circumvent any security mechanisms used by the SOFTWARE PRODUCT or any applications running on the SOFTWARE PRODUCT;
engage in any activity that interferes with or disrupts the SOFTWARE PRODUCT (or the servers and networks which are connected to the SOFTWARE PRODUCT);
access the SOFTWARE PRODUCT in a manner intended to avoid incurring fees or exceeding usage limits or quotas;
delete or in any manner alter the copyright, trademark, and other proprietary rights notices, if any, of PHASE FIVE SYSTEMS and its licensors appearing on the SOFTWARE PRODUCT;
access the SOFTWARE PRODUCT for the purpose of bringing an intellectual property infringement claim against PHASE FIVE SYSTEMS or for the purpose of creating a product or service competitive with the SOFTWARE PRODUCT;
upload, record, publish, post, link to, transmit or distribute materials via the SOFTWARE PRODUCT, or otherwise utilize the SOFTWARE PRODUCT in a manner that: (i) advocates, promotes, incites, instructs, informs, assists or otherwise encourages violence or any illegal activities; (ii) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or PHASE FIVE SYSTEMS, or any rights of publicity or privacy of any party; (iii) attempts to mislead others about YOUR identity or the origin of a message or other communication, or impersonates or otherwise misrepresents YOUR affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (iv) promotes, solicits or comprises inappropriate, harassing, abusive, profane, hateful, defamatory, libelous, threatening, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity; (v) is harmful to minors; (vi) utilizes or contains any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or (vii) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising).
YOUR rights in the SOFTWARE PRODUCT will be limited to those expressly granted in this Section 1 and shall terminate automatically upon the termination of this EULA for any reason. Except as expressly granted in this EULA, neither party shall have any other rights of any kind in the other’s intellectual property, intellectual property rights, proprietary technology, websites, products, or other proprietary materials. Under no circumstances will anything in this EULA be construed as granting, by implication, estoppel, or otherwise, a license to any party’s intellectual property, intellectual property rights or proprietary technology other than in strict accordance with the terms of this EULA. Each party reserves all rights not expressly granted to the other under this EULA.
3. WARRANTY DISCLAIMERS.
YOU AGREE THAT SOME OF THE SOFTWARE PRODUCT OR PORTIONS OF THE SERVICE MAY BE EXPERIMENTAL, PRELIMINARY OR UNTESTED, AND ARE BEING PROVIDED AT NO CHARGE. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SOFTWARE PRODUCT AND ANY SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. PHASE FIVE SYSTEMS DOES NOT WARRANT THAT THE SOFTWARE PRODUCT WILL MEET USER'S REQUIREMENTS OR BE ERROR-FREE, ANY OPERATIONS OR TRANSMISSIONS WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE. TO THE FULLEST EXTENT PERMITTED BY LAW, PHASE FIVE SYSTEMS HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS) ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE PRODUCT, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, AVAILABILITY, SECURITY, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
4. LIABILITY LIMITATIONS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PHASE FIVE SYSTEMS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM USE, POSSESSION, MISUSE OR MALFUNCTION OF THIS APPLICATION, INCLUDING WITHOUT LIMITATION DAMAGE TO PROPERTY, LOSS OF GOODWILL, COMPUTER OR HANDHELD DEVICE FAILURE OR MALFUNCTION AND DAMAGES FOR PERSONAL INJURY, EVEN IF PHASE FIVE SYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS MAY NOT ALLOW CONTRACTUAL LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS AND/OR EXCLUSION OR LIMITATION OF LIABILITY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE PHASE FIVE SYSTEMS'S WARRANTY PERIOD AND LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
THE AGGREGATE LIABILITY OF A PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED THE LESSER OF THE AMOUNT OF ONE HUNDRED US DOLLARS, OR THE AMOUNT YOU HAVE ACTUALLY PAID WITHIN THE PAST 12 MONTHS FOR USE OF THE SOFTWARE PRODUCT.
5. TERM AND TERMINATION.
Without prejudice to any other rights, this EULA, including the warranties, will terminate automatically if YOU fail to comply with any term hereof. Furthermore, YOU agree that PHASE FIVE SYSTEMS, in its sole discretion and for any or no reason, may terminate YOUR account or any part thereof. YOU agree that any termination of YOUR access to the SOFTWARE PRODUCT may be without prior notice, and YOU agree that PHASE FIVE SYSTEMS will not be liable to YOU or any third party for such termination. No notice shall be required from PHASE FIVE SYSTEMS to effect such termination. On termination, YOU must destroy all copies of the SOFTWARE PRODUCT, including all of its component parts, and any alterations YOU may have made. YOUR obligation to pay accrued charges and fees shall survive any termination of this EULA.
6. GOVERNING LAW
Irrespective of the place of execution or performance, this EULA shall be governed and construed in accordance with the laws of the State of California without regard to its conflict of laws provisions. Any litigation to enforce or interpret the provisions of this EULA or the parties' rights or obligations arising out of this EULA or the performance hereunder shall be maintained only in the state and federal courts located in Santa Clara County, California, and the parties expressly consent to personal jurisdiction in such courts. In the event that YOU breach this EULA or indicate YOUR intention to breach this EULA in any manner that violates or may violate PHASE FIVE SYSTEMS intellectual property rights or may cause continuing or irreparable harm to PHASE FIVE SYSTEMS, PHASE FIVE SYSTEMS may seek injunctive relief in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this EULA.
YOU agree to hold harmless and indemnify PHASE FIVE SYSTEMS, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any third party claim arising from or in any way related to (a) YOUR breach of the EULA, (b) YOUR use of the SOFTWARE PRODUCT, (c) YOUR violation of applicable laws, rules or regulations in connection with the SOFTWARE PRODUCT, or (d) YOUR materials or data, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature.
YOU may choose to or PHASE FIVE SYSTEMS may invite YOU to submit comments or ideas about the SOFTWARE PRODUCT, including without limitation about how to improve the SOFTWARE PRODUCT or our services. By submitting any feedback, YOU agree YOUR disclosure is gratuitous, unsolicited and without restriction and will not place PHASE FIVE SYSTEMS under any fiduciary or other obligation, and that PHASE FIVE SYSTEMS is free to use such feedback without any additional compensation to YOU, and/or to disclose such feedback on a non-confidential basis or otherwise to anyone.
In the event YOU use the SOFTWARE PRODUCT as an organization, YOU agree to permit PHASE FIVE SYSTEMS to identify YOU as a current and/or historical customer and to use YOUR name and/or logo in any of PHASE FIVE SYSTEMS’ investor materials, and YOU hereby grant a royalty-free, license for PHASE FIVE SYSTEMS to do so.
10. THIRD-PARTY CONTENT
Use of the SOFTWARE PRODUCT may involve references or hyperlinks to other web sites or content or resources or email content. PHASE FIVE SYSTEMS has no control over any web sites or resources which are provided by companies or persons other than PHASE FIVE SYSTEMS. YOU acknowledge and agree that PHASE FIVE SYSTEMS is not responsible for the availability of any such third party content, sites or resources (“Third Party Content”), and does not endorse any advertising, products or other materials on or available from such Third Party Content. YOU acknowledge and agree that PHASE FIVE SYSTEMS is not liable for any loss or damage which may be incurred by YOU or other users as a result of the availability of those Third Party Content, or as a result of any reliance placed by YOU on the completeness, accuracy or existence of any information, advertising, products or other materials on, or available from, such Third Party Content.
11. THIRD PARTY SOFTWARE
The SOFTWARE PRODUCT may incorporate certain third party software (“Third Party Software”), which is licensed subject to the terms and conditions of the third party licensing such Third Party Software. Nothing in this EULA limits YOUR rights under, or grants YOU rights that supersede, the terms and conditions of any applicable license for such Third Party Software.
12. CHANGES TO THE EULA
This EULA may be amended or updated from time to time without notice and may have changed since YOUR last visit to the website or use of the SOFTWARE PRODUCT. It is YOUR responsibility to review this EULA for any changes. By continuing to access or use the SOFTWARE PRODUCT after revisions become effective, YOU agree to be bound by the revised EULA. If YOU do not agree to the revised EULA, please stop using the SOFTWARE PRODUCT.
Unless otherwise expressly agreed in writing, this EULA constitutes the sole and exclusive agreement between YOU and PHASE FIVE SYSTEMS with regard to the SOFTWARE PRODUCT, and supersedes all prior agreements, whether oral or written, and other communications between the parties relating to the subject matter set forth herein. If any part of this EULA is held to be unlawful, void, or unenforceable, that part shall be deemed severed and shall not affect the validity and enforceability of the remaining provisions. The failure of PHASE FIVE SYSTEMS to exercise or enforce any right or provision under this EULA shall not constitute a waiver of such right or provision. Any waiver of any right or provision by PHASE FIVE SYSTEMS must be in writing and shall only apply to the specific instance identified in such writing. YOU may not assign this EULA, or any rights or licenses granted hereunder, whether voluntarily, by operation of law, or otherwise without the prior written consent of PHASE FIVE SYSTEMS.
If YOU have any questions regarding this EULA or if YOU wish to request any information from PHASE FIVE SYSTEMS, please refer to the email address: email@example.com.