(a) Limited License. Subject to the terms of this Agreement, Infrascale grants you a limited, personal, non-exclusive, non-sublicensable and non-transferable license to: (i) download, install and use the Software on one or more computers in the manner prescribed herein, provided that the Software is for your use for the sole purposes for which the Software is designed; and (ii) provided you possess a valid subscription to the Services, use the Services on one or more computers in the manner prescribed herein, provided that the Services are for your use for the sole purposes for which the Services are designed.
(b) Ownership. The Software and Services are licensed, not sold, to you by Infrascale for use only under the terms of this Agreement. Infrascale, its licensors and suppliers own all right, title and interest in and to the Software and Services, and all portions thereof, and reserve all rights not expressly granted to you including without limitation any and all worldwide copyrights, patents, trade secrets, trademarks, mask works, proprietary and other intellectual property rights (collectively, “Intellectual Property Rights”) in or associated with the Software and Services. Unless otherwise expressly agreed in writing by Infrascale, the Hardware is licensed, not sold, to you by Infrascale for use only under the terms of this Agreement. Infrascale, its licensors and suppliers own all right, title and interest in and to the Hardware, and all upgraded components and accessories to the Hardware, and reserve all rights not expressly granted to you including without limitation any and all Intellectual Property Rights in or associated with the Hardware.
(c) Copies; Use. You may not, under any circumstance, make copies of or attempt to duplicate, whether directly or indirectly, the Software or Services. In addition, you may not, directly or indirectly, do any of the following: (i) remove or modify any copyright, trademark or other proprietary notices affixed to the Products; (ii) alter, change, repurpose or modify the Products, other than as provided for within the re-branding functionality of the Software; (iii) sell, transfer, rent, lease, timeshare or sublicense the Products to any third party; (iv) reverse engineer, disassemble, decompile or attempt to derive source code from the Products unless (and then only to the extent) expressly permitted by law; (v) prepare derivative works, improvements or intellectual property based on the Products; (vi) use the Products for any unlawful, immoral, unethical or unreasonable purpose or activity; or (vii) cause or intend the Products to be used in any way or manner that may violate the Intellectual Property Rights or other personal rights (including, but not limited to, privacy rights and ownership rights) of any other person or entity. At any time during the term of this Agreement or thereafter, Infrascale shall have the right to audit your use of the Products to confirm compliance with this Agreement. This section shall survive any termination or expiration of this Agreement.
Product Changes; Software Updates
In its sole and absolute discretion, Infrascale may, from time to time, (i) modify, add or discontinue any aspect, content or feature of the Products; and (ii) offer enhancements, updates, upgrades or other modifications to the Software and Services (collectively, “Updates”) to you, including, but not limited to, new versions of the Software or Services. While Infrascale may offer such Updates, unless expressly agreed otherwise in writing, Infrascale is not required and is under no obligation to provide any maintenance or services to you, including without limitation any support or Updates. Unless explicitly stated otherwise in writing, the terms of this Agreement will govern any Updates provided by Infrascale that replace, modify or supplement the Software and/or Services. Infrascale may make Updates available by automatic download, whereby you agree to accept Updates upon your download of the Software. You must promptly accept and implement all Updates necessary for the proper function and security of the Software and Services, as such Updates are released by Infrascale. Infrascale is not responsible for performance, security, availability or other issues or liabilities arising out of or resulting from your failure to promptly implement any Update.
Prior to providing any personal information to Infrascale or using the Products, you agree to review the Infrascale Privacy Statement and Terms of Service for the applicable Products, as may be amended from time to time, each of which are incorporated herein by reference. By agreeing to this Agreement, you hereby acknowledge and agree that you have reviewed the Infrascale Privacy Statement and Terms of Service and you expressly consent to be bound thereby.
Additional Representations, Warranties and Covenants
You hereby expressly represent, warrant, covenant and agree that: (a) you have full capacity, right and authority to enter into and perform this Agreement; (b) your use of the Products will not, directly or indirectly, infringe (in whole or in part) any Intellectual Property Rights, personal or privacy rights of any third party or Infrascale; (c) your use of the Products will in all manners and respects comply with any and all applicable laws, rules and regulations; (d) your use of the Products will not in any manner, directly or indirectly, disparage, defame, discredit or harm Infrascale or its reputation or goodwill; (e) your entry into this Agreement and/or use of the Products does not breach any of your obligations to any third party, breach any contract or agreement or violate any applicable rule, law or regulation; (f) your entry into this Agreement and use of the Products is for a bona fide purpose and you are not using the Products to distribute any services or software for an improper, illegal, immoral or unethical purpose; and (g) you have all necessary rights in and to all information you submit or otherwise make available to the Software and/or Services, and Infrascale’s use of such information as contemplated hereunder will not violate any rights of privacy, Intellectual Property Rights or other proprietary rights.
User Legal Compliance
You agree to comply, at your sole expense, with any and all applicable laws, ordinances, regulations and codes, including (without limitation) the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections, needed as a result of or in connection with this Agreement. You will immediately report to us any and all suspected or actual violations of this Agreement of which you are or should be aware.
Infrascale Disclaimer of Legal Compliance
Infrascale does not provide any representations or warranties as to user’s compliance with applicable laws, ordinances, regulations and codes, including (without limitation) the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections, needed as a result of or in connection with this Agreement.
This Agreement shall remain effective and in full force and effect until expiration or earlier terminated by you at any time upon notice to Infrascale. This Agreement shall terminate immediately without notice if you are in breach of any of its terms and conditions. Upon expiration or termination for any reason, you agree to (a) immediately discontinue any and all use of the Software and Services; (b) unless otherwise expressly agreed in writing by Infrascale, immediately discontinue any and all use of the Hardware and return it and all accessories to Infrascale or its designee in the same condition as it was provided to you, less reasonable wear and tear; and (c) destroy, delete or uninstall any and all copies of the Software in your possession, whether on your computer or on any media or otherwise. Following termination or expiration of the Agreement, Infrascale may, in its sole and absolute discretion, choose to at any time erase, destroy and permanently delete any and all of your data, materials, content, information and files stored with, transmitted or backed up through Infrascale. The following Sections shall survive any termination or expiration of this Agreement: Sections 1(b)-(c) and 7-14.
Other than the limited licenses expressly set forth in Section 1(a), nothing in this Agreement is intended to grant to you any rights including, without limitation, any Intellectual Property Rights of Infrascale. All Intellectual Property Rights in and to the Products shall remain the sole and exclusive property of Infrascale, its licensors and suppliers and you shall gain no interest, right or title therein by entering into this Agreement or using the Products. Further, nothing contained on or through the Products, or in this Agreement, should be construed as granting (whether express, by implication, estoppel or otherwise) any license or right to you to use any Intellectual Property Rights or other proprietary information displayed in or through the Products. The absence of a product or service name or logo anywhere in the text of the Software or Service or on the Hardware does not constitute a waiver of any Intellectual Property Rights with respect to the name, logo or Products.
Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCTS AND ALL INFORMATION, SERVICES, CONTENT AND MATERIALS THEREON AND THEREWITH ARE PROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, INFRASCALE, ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTIES OF ANY KIND WHATSOEVER (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) TO YOU OR ANY OTHER THIRD PARTY. FURTHER, INFRASCALE, ITS LICENSORS AND SUPPLIERS SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO ALL PRODUCTS OR OTHERWISE RELATED TO THIS AGREEMENT. MOREOVER, YOU AGREE THAT INFRASCALE, ITS LICENSORS AND SUPPLIERS WILL HAVE ABSOLUTELY NO LIABILITY WHATSOEVER WITH RESPECT TO ANY CLAIM RELATED TO, IN CONNECTION WITH OR ARISING FROM THE PRODUCTS (OR THEIR USE, SUITABILITY, EFFICACY OR PERFORMANCE), EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. SPECIFICALLY, BUT WITHOUT LIMITATION, INFRASCALE, ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THAT: (a) THE INFORMATION, SERVICES, MATERIALS OR CONTENT ON OR IN THE PRODUCTS IS CORRECT, ACCURATE OR RELIABLE, OR SUITABLE FOR COMPLIANCE WITH DOCUMENT RETENTION OR OTHER LEGAL REQUIREMENTS; (b) THE FUNCTIONS CONTAINED IN OR PROVIDED BY THE PRODUCTS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR (c) ANY DEFECTS WILL BE CORRECTED, OR THAT THE PRODUCTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU HEREBY ACKNOWLEDGE THAT USE OF THE PRODUCTS IS AT YOUR SOLE AND ABSOLUTE RISK IN YOUR OWN DISCRETION. YOU AGREE THAT YOU WILL MAINTAIN A PRIMARY ELECTRONIC FILE OF YOUR COMPLETE DATA AND MATERIALS AND WILL NOT USE THE PRODUCTS AS A SUBSTITUTE THEREFORE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY INFRASCALE OR ITS REPRESENTATIVES WILL UNDER ANY CIRCUMSTANCES CREATE A WARRANTY, UNLESS SPECIFICALLY SET FORTH IN AN EXPRESS WRITING SIGNED BY AN OFFICER OF INFRASCALE. SHOULD THE PRODUCTS OR ANY PORTION THEREOF PROVE DEFECTIVE OR ERRONEOUS, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICE, REPAIR OR CORRECTION AND WE WILL HAVE ABSOLUTELY NO LIABILITY WITH RESPECT THERETO.
Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OTHER THAN PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 BELOW, IN NO EVENT SHALL EITHER PARTY: (I) BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR REVENUES, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES), RELATED TO, IN CONNECTION WITH OR ARISING FROM THIS AGREEMENT OR THE PRODUCTS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE), EVEN IF SUCH PARTY WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, ; OR (II) HAVE TOTAL CUMULATIVE LIABILITY HEREUNDER (REGARDLESS OF THE THEORY OF LIABILITY) RELATED TO, IN CONNECTION WITH OR ARISING FROM THIS AGREEMENT OR THE PRODUCTS EXCEEDING TEN DOLLARS ($10.00). ANY CLAIM BY YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND IN THE ABSENCE OF SUCH LIMITATIONS, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD HAVE BEEN SUBSTANTIALLY DIFFERENT THAN PROVIDED HEREIN AND/OR THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
You will, at your own expense, defend, indemnify and hold harmless Infrascale, its parents, subsidiaries, affiliates and agents, and their respective officers, directors, shareholders, agents, representatives, contractors, employees and customers (each, an “Indemnitee”) from and against any and all loss, cost, expense, damage, claim, demand or liability (“Claim”), including without limitation reasonable attorneys’ and professional fees and costs, and the cost of settlement, compromise, judgment or verdict incurred by, or demanded of, an Indemnitee, that, directly or indirectly, arises out of, results from or occurs in connection with: (a) your negligence, bad faith or willful misconduct; (b) your breach of any of the provisions of this Agreement, the Infrascale Privacy Statement or Terms of Service; (c) your violation of any applicable law, rule or regulation; (d) infringement by you of any Intellectual Property Rights of any third party, (e) unlawful disclosure, use or misappropriation of a trade secret by you; or (e) your use of (or inability to use) the Products in any manner whatsoever. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses, and promptly reimburse our reasonable costs and expenses (including, without limitation, reasonable attorneys’ and professional fees) in connection with, relating to or arising from our defense in such matter. No settlement, compromise or adjudication of any Claim to which indemnity applies hereunder shall be effective or permitted without the express and prior written consent of Infrascale.
Notwithstanding anything to the contrary contained in Section 14 below, you expressly agree that: (i) any use of the Products by you that violates or is inconsistent with the terms of this Agreement (in whole or in part) may cause Infrascale, its licensors and suppliers irreparable damage, and (ii) equitable or injunctive relief (including, but not limited to, specific performance) may be necessary to protect the rights or interests of Infrascale, its licensors and suppliers. Accordingly, you agree that Infrascale may in any such instance, in its sole and absolute discretion and judgment, obtain any suitable injunctive or other equitable relief from any court of competent jurisdiction (without posting any bond) and that you will not assert any objection thereof (including, but not limited to, a claim that such relief is inappropriate or that the harm alleged by Infrascale is not irreparable).
If you are dissatisfied for any reason with the Products or the terms and conditions of this Agreement, your sole and exclusive remedy (whether at law or equity) shall be to discontinue your use of the Products and terminate this Agreement as described herein.
(a) Governing Law. This Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the State of California, without regard to the conflicts of law provisions thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to this Agreement.
(b) Disputes. By agreeing to these terms, you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. If Infrascale’s efforts to informally resolve any complaints, disputes or disagreements fail, each party expressly agrees that any controversy, dispute or claim (“Litigation”) arising out of, relating to or in connection with, the Products, this Agreement or the alleged breach thereof, shall be settled by confidential binding arbitration in Los Angeles County, California, in accordance with the applicable rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) shall be binding on the parties and may be entered in any court having jurisdiction worldwide. Regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to the Products or this Agreement must be filed or arbitrated by you within one (1) year after such claim or cause of action arose or be forever barred. In the event of any Litigation, both parties expressly and irrevocably consent to exclusive venue and personal jurisdiction in Los Angeles County, California. In the event of any Litigation arising from, related to or in connection with the Products or this Agreement, the prevailing party thereof shall be entitled to recover its reasonable expenses, including without limitation attorneys’ fees and the costs of litigation and arbitration. By downloading, installing and/or using the Software or Services or using the Hardware, you agree to binding arbitration. Infrascale will make reasonable efforts to informally resolve any complaints, disputes or disagreements that you may have with Infrascale arising from, related to or in connection with the Products or this Agreement. The agreement to arbitrate in this Section 14(b) shall not prevent Infrascale from seeking equitable relief or other redress in any court of competent jurisdiction as it relates to confidential information or as otherwise set forth in Section 12.
(c) Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, then: (i) such provision will be enforced to the maximum extent permissible under the circumstances so as to effectuate the original intent of the parties with respect to such provisions; and (ii) the remaining provisions of this Agreement will be unaffected thereby and will continue to remain in full force and effect.
(d) Assignment. Neither this Agreement, nor any rights or obligations hereunder, may be assigned or otherwise transferred by you without the prior written consent of Infrascale; Infrascale may assign this Agreement in whole or in part to an acquirer of all or substantially all of its business or assets that are the subject matter of this Agreement without written consent. Any attempted assignment by a party in violation of this Section 14(d) shall be null and void ab initio. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors and permitted assigns.
(e) Assent. Your written or electronic signature is not necessary to manifest your assent or acceptance of this Agreement, and your use of the Products as discussed herein shall in and of itself constitute such assent and acceptance, which acceptance shall constitute a valid and legally binding agreement.
(f) Construction. The article, section and paragraph headings used in this Agreement are for convenience only and shall not be used in interpreting or construing this Agreement.
(g) Relationship. Nothing in this Agreement will be construed to constitute an agency, partnership, joint venture or employer-employee relationship between the parties. Neither party has the power, and will not hold itself out as having the power, to act for or in the name of, or to bind, the other party. Nothing contained in this Agreement should be construed to give either party the power to direct or control the day-to-day activities of the other party. The provisions of this Agreement are intended solely for the benefit of Infrascale and you, and shall create no rights or obligations enforceable by any other party.
(h) Waiver. Failure by Infrascale to enforce any right, remedy or provision hereof will not be deemed a waiver of the same or any future enforcement of that or any other right, remedy or provision. A waiver by Infrascale of any right, remedy or provision hereof shall only be effective if it is in an express writing that is signed by a duly authorized officer of Infrascale.
(i) Modifications; Entire Agreement. No modification or amendment to this Agreement will be effective unless in writing and signed by authorized representatives of each party, and must specifically identify this Agreement by its title. This Agreement contains the entire understanding between Infrascale and you with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements or understandings (whether oral, written, implied or otherwise) between the parties with respect to the subject matter hereof.
(j) Export Restrictions. You agree to comply with applicable export and re-export laws, regulations and restrictions (including but not limited to end-user, end-use, and destination restrictions) issued by the United States, and any country where the Software or Services are to be delivered, installed or used in the performance of this Agreement. You shall disclose all pertinent information to Infrascale required for Infrascale to comply with any applicable export laws or regulations.