Software License Agreement
Before installing the Notify Technology Corporation ("Licensor") NotifyMDM software ("Software") or clicking on "accept" or "yes" during review of this software license agreement ("Agreement") or downloading, installing or using the Software, please carefully read this Agreement, which contains the terms and conditions under which you ("Licensee") are acquiring a license to use the accompanying Software. If Licensee does not accept the terms and conditions of this Agreement, please do not download, install or use the Software. If Licensee opens the accompanying Software, clicks on "accept" or "yes", downloads, installs or uses the Software, Licensee will be acquiring a license to use the Software in object code form only in accordance with the terms and conditions of this Agreement, and Licensee will be considered to have accepted and agreed to the terms and conditions of this Agreement. The individual accepting and agreeing to the terms and conditions of this Agreement represents and warrants that he/she has full legal capacity and authority to bind to the terms and conditions of this Agreement (as applicable) (i) himself/herself, where acquiring the Software in his/her individual capacity for his/her own personal use or (ii) the company, organization or entity for whom he/she is employed, contracted or acting as agent, representative or otherwise, where acquiring the Software on behalf of, or in relation to work or duties performed for, such company, organization or entity.
In consideration of the payment of the license fee for the Software, Licensor grants to Licensee a non-exclusive, non-transferable and restricted license to use the Software as set out in this Agreement for Licensee's own internal purposes only, but not for resale, relicensing, export, re-export or other redistribution. For the purposes of this Agreement, unless more specifically stated, "Software" shall include all NotifyMDM Server, NotifyMDM Device Applications, Third Party software, interfaces, and firmware, licensed by Licensor from third parties for incorporation into Notify Software and distributed as a part of that Notify Software. and all user manuals and documentation which accompany the Software, such third party software being subject to the provisions of Section 4.
The copyright and all other right, title and interest in and to the Software shall at all times remain with Licensor (or its licensors). Licensee acknowledges and agrees that no ownership interest in or to the Software is transferred to Licensee hereunder and that the Software are provided to Licensee strictly on a license basis as provided for within this Agreement. Physical copies of the Software remain the property of Licensor (or its licensors) and such copies are deemed to be on loan to Licensee during the term of this Agreement. Licensee must fully reproduce any copyright or other notice marked on any part of the Software on all authorized copies and must not alter or remove any such copyright or other notice on the original copy of the Software. Licensor (or its licensors) reserves all rights not expressly granted to Licensee.
(a) Licensee may install Software on one or more servers which are owned or leased by Licensee or for which Licensee otherwise has proper authority and control over;
(b) Licensee may install device Application Software on associated wireless devices but will require the appropriate paid up Licenses in order to properly function;
(c) Except as expressly authorized under this Agreement, Licensee is prohibited to the fullest extent permitted by applicable law from doing any of the following:
(i) sublicense, sublease, lease, sell, distribute, rent, permit concurrent use of or grant other rights in the Software without written agreement from Notify Technology;
(ii) provide use of the Software to users who are not properly licensed by Licensor;
(iii) transfer this license to use the Software; or
(iv) translate, reverse engineer, modify, adapt, alter, create derivative works, decompile or disassemble any part of the Software.
Upon receipt by Licensor of the applicable annual license fees or maintenance fees for the Software, Licensee is entitled to all updates and upgrades to the Software.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR IN THIS SECTION 4, LICENSOR DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS OR TERMS EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING, USAGE OR TRADE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR FREE OR THAT ITS OPERATION WILL BE UNINTERRUPTED. NO LICENSOR AGENT, REPRESENTATIVE, OR DEALER IS AUTHORIZED TO MODIFY, EXTEND OR ADD TO THE LIMITED WARRANTY CONTAINED HEREIN ON BEHALF OF LICENSOR. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. THE LIMITED WARRANTY IN THIS AGREEMENT GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
Third Party Content, Third Party Services, Third Party Software, Third Party Websites and Airtime Services. EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW IN YOUR JURISDICTION, LICENSOR SHALL HAVE NO LIABILITY WHATSOEVER TO LICENSEE OR ANY THIRD PARTY CLAIMING BY OR THROUGH LICENSEE , FOR ANY ISSUE RELATING TO THE LINKED SITES, OTHER WEB SITES, THIRD PARTY CONTENT, THIRD PARTY SERVICES, AIRTIME SERVICES OR THIRD PARTY SOFTWARE, INCLUDING, WITHOUT LIMITATION: (A) THE ACCURACY, TRANSMISSION, TIMELINESS OR CONTINUED AVAILABILITY OF SUCH THIRD PARTY SERVICES, AIRTIME SERVICES, THIRD PARTY SOFTWARE, THIRD PARTY CONTENT, LINKED SITES OR OTHER WEB SITES; (B) THE PERFORMANCE OR NON-PERFORMANCE OF THE THIRD PARTY SOFTWARE, THIRD PARTY SERVICES OR AIRTIME SERVICES; OR (C) THE INTEROPERABILITY OF THE THIRD PARTY SOFTWARE, THE THIRD PARTY SERVICES OR AIRTIME SERVICES WITH ALL OR A PORTION OF THE NOTIFY SOFTWARE. LICENSEE SPECIFICALLY AGREES THAT NOTIFY IS NOT RESPONSIBLE OR LIABLE FOR ANY VIRUSES, OR ANY THREATENING, DEFAMATORY, OBSCENE, TORTIOUS, OFFENSIVE OR ILLEGAL THIRD PARTY CONTENT OR FOR CONTENT THAT INFRINGES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OR THE TRANSMISSION THEREOF. LICENSEE’S RECOURSE IN THE EVENT OF ANY SUCH CLAIM WITH RESPECT TO ANY THIRD PARTY SOFTWARE, THIRD PARTY SERVICE, AIRTIME SERVICES OR THIRD PARTY CONTENT, SHALL BE SOLELY AGAINST THE RELEVANT THIRD PARTIES.
End User License Agreement for Third Party Components. Certain of our licensors may require that Licensor provide Licensee with such licensor’s end user license agreement (“EULA”) with respect to any such licensor’s software, interfaces and firmware that are incorporated into Notify Software (“Third Party Components”). Licensee agrees in such case, in addition to being bound to the terms of this Agreement, to be bound by the terms of such licensors’ EULAs, solely as it relates to such Third Party Components. Licensor may supply Licensee with such EULAs in a number of ways, including, without limitation via: email, posting on Licensor’s website at http://www.notifycorp.com/policy/terms-of-use/, or by any other means that Licensor may from time to time notify Licensee of.
5.Limitation of Liability
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR IN SECTION 4 ABOVE, THE ENTIRE RISK AS TO THE DOWNLOAD, INSTALLATION, USE, RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY LICENSEE. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, SHALL LICENSOR HAVE ANY LIABILITY TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE MAXIMUM AGGREGATE LIABILITY OF LICENSOR IN ANY CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE SHALL NOT EXCEED THE LICENSE FEE PAID BY LICENSEE FOR THE SOFTWARE GOVERNED BY THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND THESE LIMITATIONS SHALL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL BREACH OR A BREACH OF THE FUNDAMENTAL TERMS OF THIS AGREEMENT. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. IN SUCH STATES OR JURISDICTIONS, LICENSOR'S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NOTHING IN THIS AGREEMENT SHALL RESTRICT LICENSOR'S LIABILITY IN A MANNER WHICH IS EXPRESSLY PROHIBITED BY APPLICABLE LAW. THE EXCLUSIONS AND LIMITATIONS CONTAINED HEREIN SHALL ALSO BE APPLICABLE TO LICENSOR'S LICENSORS, AGENTS AND REPRESENTATIVES.
6.Term and Termination
This Agreement shall remain in effect until terminated. If Licensee wishes to terminate this Agreement at any time, it may do so by ceasing all use of the Software and providing Licensor with written notice of such termination. Licensor may terminate this Agreement due to Licensee's failure to comply with any of the provisions of this Agreement if after thirty (30) days written notice such failure remains uncured. Upon any termination of this Agreement, Licensee shall promptly purge all copies of the Software from all computer systems on which it was stored and return to Licensor all physical copies of the Software.
7.U.S. Government Licensees
The Software: (i) was developed exclusively at private expense; (ii) is a trade secret of Licensor for all purposes of the Freedom of Information Act; (iii) is "commercial computer software" subject to limited utilization (Restricted Rights); and (iv) including all copies of the Software, in all respects is and shall remain proprietary to Licensor (or its licensors). Use, duplication or disclosure by the U.S. Government or any person or entity acting on its behalf is subject to restrictions for software developed exclusively at private expense as set forth in: (i) for the DoD, the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or any successor clause, and (ii) for all government agencies, the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19 or any successor clause. The U.S. Government must refrain from changing or removing any insignia or lettering from the Software or from producing copies of the Software (except for one (1) copy of the Software for backup purposes only). Use of the Software shall be limited to the facility for which it is acquired. All other U.S. Government personnel using the Software are hereby on notice that use of the Software is subject to restrictions which are the same as, or similar to, those specified above.
Licensee acknowledges that the Software is subject to regulation by agencies of the U.S. Government, including without limitation the U.S. Department of Commerce, which prohibit export or diversion of certain goods to certain countries. Any and all obligations of Licensor to provide the Software, as well as any other technical assistance, is subject in all respects to such United States laws and regulations as shall from time to time govern the license and delivery of goods abroad by persons subject to the jurisdiction of the United States. Licensee shall comply with the Export Administration Regulations and other United States laws and regulations governing exports in effect from time to time, and without limiting the foregoing, Licensee shall not export or re-export, or otherwise provide, the Software or any part thereof, or any technical data related thereto or the direct product of such technical data, to any country, or to any national or resident of any country, as to which the U.S. Government has placed an embargo against the shipment of goods, or anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. Licensee hereby agrees and confirms that Licensee is not a resident or national of, and this transaction is not in any way connected with, any jurisdictions which are prohibited by applicable law. Licensee agrees and confirms that Licensee and this transaction are in full and complete compliance with the laws of Licensee's jurisdiction, and that Licensee shall not, in any manner whatsoever, either remove, convey, export, re-export or transmit the Software from Licensee's jurisdiction in contravention of applicable law.
This Agreement shall be governed by the laws of the State of California, without giving effect to the principles of conflicts of law, and excluding that body of law applicable to choice of law and excluding the United Nations Convention on Contracts for the International Sale of Goods, if applicable. Licensee agrees that the state and federal courts located in the State of California constitute a convenient forum for any litigation and Licensee submits to the exclusive jurisdiction and venue of such courts. This transaction is void wherever such transaction is prohibited.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be severed from this Agreement and ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding any provisions to the contrary on any Licensee purchase order or similar document, no terms, conditions or stipulations written on any Licensee purchase order or similar document shall add to, detract from or affect the terms of this Agreement even if such purchase order or similar document is accepted by the receiving party. Licensee acknowledges and agrees that the Software (in whole or in part) may be delivered to Licensee by electronic means, including through electronic mail or over the Internet. Licensor may from time to time, in its sole discretion, provide Licensee, at no charge, with certain software fixes, patches, upgrades or other functionality respecting the Software ("Additional Software"). Licensee acknowledges and agrees that such Additional Software (in whole or in part) may be delivered to Licensee by electronic means, including through electronic mail or over the Internet. Any such Additional Software provided to Licensee by Licensor shall be deemed to be the Software hereunder and shall be governed by the terms and conditions of this Agreement. Licensor reserves the right to cease provision of such Additional Software to Licensee at any time in Licensor's sole discretion. Licensee acknowledges and agrees that it shall possess, maintain and be solely responsible for any software, hardware or any other products or services necessary for the proper download, installation, operation and use of the Software. The parties acknowledge and agree that the limited warranty, exclusive remedies and limited liability set forth in this Agreement are fundamental elements of the basis of the bargain between Licensor and Licensee, and that Licensor would not be able to provide the Software on an economic basis without such limitations. Where Licensor is to physically ship the Software to Licensee, Licensor shall do so FOB Licensor's shipping point. Licensee shall pay for all costs and expenses associated with such shipping. This Agreement is the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, written or oral, between the parties with respect to the subject matter hereof.
2013. Notify Technology Corporation. All rights reserved
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Revisions and Errata
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