NEXT LEVEL SECURITY SYSTEMS, INC. ("NLSS")
SOFTWARE LICENSE AGREEMENT – Single Use License
End User
License Agreement
IMPORTANT – Please read this End User
License Agreement carefully. It is
very important that you check that you are purchasing NLSS software or
equipment software or equipment from an approved source and that you, or the
entity you represent (collectively, "you" and/or the "Customer") have been
registered as the end user for the purposes of this NLSS End User License
Agreement. If you are not registered as the End User you have no license to use
this software and the limited warranty in this End User License Agreement does
not apply. Assuming you have
purchased from an approved source, downloading, installing or using NLSS or
NLSS supplied software constitutes acceptance of this Agreement.
IMPORTANT – READ
CAREFULLY: This End User License Agreement
("Agreement") is a legal contract between you, either as an individual or a
single entity ("you"), and NLSS, governing your use of the NLSS software and
related online or electronic documentation (such software and the documentation
collectively referred to herein as the "Software"). "Software," includes the executable computer programs and
any related printed, electronic and online documentation and any other files
that may accompany the product.
YOU AGREE TO BE BOUND BY THE
TERMS OF THIS AGREEMENT BY INSTALLING, ACTIVATING, COPYING OR OTHERWISE USING
THE SOFTWARE. IF YOU DO NOT AGREE,
DO NOT INSTALL, ACTIVATE, COPY OR USE THE SOFTWARE. This Agreement may be amended
from time to time by notices posted on NLSS' website http://nextls.net/nlss/eula/EndUserLicenseAgreement.html,
and you agree that by such notices you are given the opportunity to review any
amendments to this Agreement and you agree to be bound to any changes to this
Agreement if you continue to use the Software after such modification is
posted.
1.
LICENSE GRANT
The Software is licensed to you
and not sold. Subject to the terms of this Agreement, NLSS hereby grants you a
revocable, personal, non-exclusive, non-transferable and non-sublicensable
license to use the Software for your personal or internal purposes solely in
connection with your use of NLSS' hardware.
General
limitations.
This is a license, not a transfer of title, to the Software and Documentation,
and NLSS retains ownership of all copies of the Software and
Documentation. Customer
acknowledges that the Software and Documentation contain trade secrets of NLSS
or its suppliers or licensors, including but not limited to the specific
internal design and structure of individual programs and associated interface
information. Except as otherwise
expressly provided under the Agreement, Customer shall only use the Software in
connection with the use of NLSS equipment purchased by the Customer from an
Approved Source and Customer shall have no right, and Customer specifically
agrees not to:
(i) Transfer, assign or sublicense
its license rights to any other person or entity (other than in compliance with
any NLSS relicensing/transfer policy then in force), or use the Software on
NLSS equipment not purchased by the Customer from an Approved Source or on
secondhand NLSS equipment, and Customer acknowledges that any attempted
transfer, assignment, sublicense or use shall be void;
(ii) Make error corrections to or
otherwise modify or adapt the Software or create derivative works based upon
the Software, or permit third parties to do the same;
(iii) Reverse engineer or decompile,
decrypt, disassemble or otherwise reduce the Software to human-readable form,
except to the extent otherwise expressly permitted under applicable law
notwithstanding this restriction or except to the extent that NLSS is legally
required to permit such specific activity pursuant to any applicable open
source license;
(iv) Publish any results of benchmark
tests run on the Software;
(v) Use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of NLSS; or
(vi) Disclose, provide, or otherwise
make available trade secrets contained within the Software and Documentation in
any form to any third party without the prior written consent of NLSS. Customer shall implement reasonable security
measures to protect such trade secrets.
2.
RESERVATION OF RIGHTS
You acknowledge that the
Software is protected by copyrights and other intellectual property and
proprietary rights. NLSS and its third party licensors ("Licensors") reserve
all such rights with respect to the Software, except for the license expressly
granted to you in Section 1. Except for such express license, no right, title,
interest or license in or to the Software, whether by implication, estoppels or
otherwise, is granted, assigned or transferred to you. You agree not to take any action that
interferes, in any manner, with NLSS or its Licensors' rights with respect to
the Software. In addition, title,
ownership rights and intellectual property rights in and to any content
accessed through the Software is the property of the applicable content owner
and may be protected by applicable copyright or other law. This Agreement gives you no rights to
such content.
3.
RESTRICTIONS
You acknowledge and agree that
you will not: (a) reproduce the Software, except as expressly permitted under
Section 1; (b) modify, adapt, translate or create any derivative works of the
Software; (c) attempt to circumvent or disable the Software or any technology
features or measures in the Software by any means or in any manner; (d) attempt
to decompile, disassemble, reverse engineer, or otherwise attempt to derive the
source code for the Software; (e) distribute, encumber, sell, rent, lease,
sublicense, or otherwise transfer, publish or disclose the Software to any
third party; or (f) remove or alter any trademark, logo, copyright or other
proprietary notices, legends, symbols or labels in or on the Software or used
in connection with the Software.
4.
UPDATES; NON PERSONALLY INDENTIFYABLE
INFORMATION
You acknowledge that NLSS has no
obligation to provide you with any support for Updates (as defined below) to
the Software. However, NLSS may,
from time to time, issue updated versions of the Software and the Software may
automatically connect to NLSS or third-party servers via the Internet to check
for available updates to the Software, such as bug fixes, patches, upgrades,
enhances functions, plug-ins and new version s (collectively, "Updates") and
may either (1) automatically electronically update the version of the Software
that you are using on your computer or (2) give you the option of downloading
it. By installing the Software and not disabling the automated check for
Updates, you hereby agree to automatically request and receive Updates from
NLSS or third-party servers. You
consent to such automatic upgrading, and agree that the terms and conditions of
this Agreement will apply to all such Updates.
The Software may contain
automatic communications features which relay certain
non-personally identifiable information to NLSS in connection with the
operation of the Software. This
information may include your Software settings and what version of the Software
you are using. NLSS may use this
information for research purposes including statistical analysis of aggregate
customer behavior.
5.
REGISTRATION INFORMATION
As part of any product
registration process, NLSS may request registration-related information,
including your name and e-mail address.
By providing this information, you consent to its collection and use by
NLSS to provide non-promotional communications regarding the product purchased
with the Software (the "Product"), including notices of availability of any
free Updates, notices of Product recalls or notices regarding safety
concerns. You will also have the
opportunity to opt-in to receive promotional e-mails and materials from NLSS
and its business partners. By choosing the opt-in option, you give your consent
to receive such promotion materials from NLSS and its business partners until
you exercise your option to unsubscribe from such communications. NLSS will not, at any time, share your
registration information with third parties unless (a) specifically authorized
by you. (b) as required by law or court order, (c) to
third-parties provided related services for NLSS under appropriate obligations
or confidentiality, (d) in connection with a legal process (e) to an acquirer
of all or substantially all of the stock or assets or NLSS.
6.
DISCLAIMER OF WARRANTY
THE SOFTWARE IS PROVDED TO YOU
"AS IS" WITHOUT WARRANTY OF ANY KIND.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NLSS AND ITS
LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED ARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OR
LACK OF VIRUSUS. NLSS DOES NOT
WARRNT THAT THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS OR BE ERROR FREE. THE ENTIRE RISK ARISING OUT OF THE USE
OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU. YOU UNDERSTAND AND AGREE THAT ANY
SOFTWARE, MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF
THE SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE
SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, SYSTEM OR NETWORK,
INCLUDING ANY LOSS OR CORRUPTION OF DATA.
7.
LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, IN NO EVENT WILL NLSS OR ITS LICENSORS BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRPTION, LOST OF DATA, COMPUTER SYSTEM FAILURE,
MALFUNCTION OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE
OF OR INABILITY TO USE THE SOFTWARE, EVEN IF NLSS HAS BEEN ADVISED OF THE
POSSIBLITY OF SUCH DAMAGES.
BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXLUSION OR
LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE
LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL NLSS TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN
CONNECTION WITH THE SOFTWARE EXCEED TWENTY-FIVE DOLLARS ($25.00). THE FOREGOING LIMITATIONS, EXLUSIONS
AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
NLSS IS NOT RESPONSIBLE OR
LIABLE FOR ANY INFECTIONS OR CONTAMINATION OF YOUR SYSTEMS, DAMAGE TO YOUR
SYSTEMS, OR DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISING OUT OF YOUR USE
OF THE SOFTWARE. THE SOFTWARE IS
NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT
NAVIGATION OR COMMUNICATIONS SYSTEMS OR AIR TRAFFIC CONTROL MACHINES OR ANY
OTHER MACHINES IN WHICH CASE THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH,
PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
8.
U.S. GOVERNMENT RESTRICTED
RIGHTS
The Software is provided with
restricted rights. Use,
duplication, or disclosure by the Government is subject to restrictions as set
forth in subparagraph (c)(I)(ii) of The Rights in Technical Data and Computer
Software clause of DFARS 525.227-7013 or subparagraphs (c)(i) and (2) of the
Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.
Manufacturer is NEXT LEVEL Security Systems, Inc., 6353 Corte Del Abeto, Carlsbad, CA 92011.
9.
EXPORT RESTRICTIONS
NLSS makes no representation
that the Software is appropriate for use in your country of use. You acknowledge that none of the
Software or underlying information or technology may be downloaded or otherwise
exported or re-exported into (or to a national or resident of) any countries
subject to U.S. trade embargo, currently the countries on the U.S. trade
embargo list are: Iran, Cuba, Syria, North Korea, and Sudan; or anyone on the
U.S. Treasury Department's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Denial Orders. By using the Software, you are agreeing to the foregoing,
and are representing and warranting that you are not located in or under the
control of a national or resident of any such country or on any such list.
10.
INDEMNITY
You hereby agree to indemnify,
defend and hold NLSS and its Licensors harmless from and against any and all
liabilities, damages, claims, fines and expenses (including reasonable
attorneys' fees and costs) arising out of any breach of this Agreement by you.
11.
TERMINATION
Without prejudice to any other
NLSS rights, this Agreement will terminate automatically without notice if you
fail to comply with your obligations under this Agreement. Upon termination, you must immediately
cease all use of the Software. In
addition to any other remedy available to NLSS, you agree that NLSS may seek
immediate injunctive relief in the event of a breach of this Agreement by you.
Term and Termination. The Agreement and the license granted herein shall remain
effective until terminated.
Customer may terminate the Agreement and the license at any time by
destroying all copies of Software and any Documentation. Customer's rights under the Agreement
will terminate immediately without notice from NLSS if Customer fails to comply
with any provision of the Agreement.
Upon termination, Customer shall destroy all copies of Software and
Documentation in its possession or control. All confidentiality obligations of Customer, all
restrictions and limitations imposed on the Customer under the section titled
General Limitations and all limitations of liability and disclaimers and
restrictions of warranty shall survive termination of this Agreement. In addition, the provisions of the
sections titled U.S. Government End User Purchasers shall survive termination
of the Agreement.
Customer
Records. Customer grants to NLSS and its
independent accountants the right to examine Customer's books, records and
accounts during Customer's normal business hours to verify compliance with this
Agreement. In the event such audit
discloses non-compliance with this Agreement, Customer shall promptly pay to
NLSS the appropriate license fees, plus the reasonable cost of conducting the
audit.
Expert,
Re-Export, Transfer and use Controls. The Software, Documentation and technology or direct
products thereof (hereafter referred to as Software and Technology), supplied
by NLSS under the Agreement are subject to export controls under the laws and
regulations of the United States (U.S.) and any other applicable countries'
laws and regulations. Customer
shall comply with such laws and regulations governing export, re-export,
transfer and use of NLSS Software and Technology and will obtain all required
U.S. and local authorizations, permits or licenses. NLSS and Customer shall agree to provide the other
information, support documents, and assistance as may
reasonably be required by the other in connection with securing authorizations
or licenses.
U.S. Government End User Purchasers. The Software and Documentation qualify as commercial items,
as that term is defined at Federal Acquisition Regulation FAR 48 C.F.R. 2.101,
consisting of commercial computer software and commercial computer software
documentation as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1
through 227.7202-4, and notwithstanding any other FAR or other contractual
clause to be contrary in any agreement into which the end user or, if the
Agreement is direct, Government end user will acquire, the Software and
Documentation with only those rights set forth in the Agreement. Use of either the Software or
Documentation or both constitutes agreement by the Government that the Software
and Documentation are commercial computer software and commercial computer
software documentation, and constitutes acceptance of the rights and
restrictions herein.
Identified
Components; Additional Terms. The Software
may contain or be delivered with one or more components, which may include
third party components, identified by NLSS in the Documentation, readme.txt
file, third-party click-accept or elsewhere (e.g. on www.NLSS.com) the identified Component(s) as
being subject to different license agreement terms, disclaimers of warranties,
limited warranties or other terms and conditions (collectively, Additional
Terms) than those set forth herein.
You agree to the applicable Additional Terms for any such Identified
Component(s).
12.
TRANSFER
You may not assign or otherwise
transfer, by operation of law or otherwise, this Agreement or the
Software.
13.
MISCELLANEOUS
This Agreement constitutes the
entire agreement between the parties concerning the subject matter hereof and
supersedes all prior or contemporaneous oral or written understandings. This Agreement may be
amended only by a writing signed by both parties. This Agreement will be governed by the
laws of the State of California, without regard to conflicts of law provisions,
and you consent to the exclusive jurisdiction of the state and federal courts
sitting in the State of California, County of San Diego. This Agreement will
not be governed by the United Nations Convention on Contracts for the
International Sale of Goods.
If any provision of this Agreement should be held
invalid or unenforceable by a court of competent jurisdiction, such
provision will be modified to the extent necessary to render it enforceable
without losing its intent or severed form this Agreement if no such
modification is possible, and other provisions of this Agreement will remain in
full force and effect. A waiver by
either party of any term or condition of this Agreement or any breach thereof,
in any one instance, will not waive such term or condition or any subsequent
breach thereof. The
provisions of this Agreement that require or contemplate performance after the
termination of this Agreement will be enforceable notwithstanding such
termination. Neither party
will be in default or be liable for any delay, failure in performance
(excepting the obligation to pay), or interruption of service resulting
directly or indirectly from any cause beyond its reasonable control. If any dispute arises under this
Agreement, the prevailing party will be reimbursed by the
other party for any and all legal fees and costs associated therewith.
14.
NLSS does not warrant that use
of the Software will be uninterrupted or error-free. The customer accepts that software in general is prone to
bugs and flaws within an acceptable level as determined in the industry.
NLSS may, at its option, remedy
any non-conforming Software by providing a refund of the purchase price or, at
the NLSS' option, repair or replace any or all of the Software.
15.
This Agreement and the terms and
conditions contained in this Agreement apply to and are binding upon the
Customer's successors and assigns.
16.
Portions of the Software may
also be governed by the additional terms of certain software licenses, which
are available here:
a)
Spark
b)
Intuvision
c)
Mainconcepts
17. NOTICES
All notices to the Vendor under
this Agreement are to be provided at the following address:
Next Level Security Systems,
Inc.
6353 Corte Del Abeto
Carlsbad, CA 92011