STANDARD SERVICE AGREEMENT
This is an Agreement between Doctor Backup, LLC (a limited liability company formed in Maryland), which in the rest of this Agreement is called “us” or “our” or “we,” and a User of our service, which in the rest of this Agreement is called “you” or “your”.
- DATA PROTECTION AND BACKUP SERVICE
In accordance with the terms and conditions set forth in this Service Agreement, we agree to provide you the ability to store and retrieve your computer files from our storage facilities (using a public Internet connection that you provide) and certain software we provide that gets installed on your computer(s). We also offer an optional capability that allows you, at your own risk, to use this same software we provide to store and retrieve additional computer files from storage facilities you alone provide. We refer to this capability as backing up to “cloud” storage and it is available as an option only to paid users of our regular backup service. Backup and other additional data protection services we provide to you rely heavily on the use of third-party software products which execute on your computer systems. You expressly acknowledge receipt of, and agree to be bound by terms and conditions found in the end user license agreements for the software products which are included at the end of this document.
- PAYMENT FOR SERVICE
You agree to qualify for service by means of a valid credit card, or by another payment method we agree to prior to the start of service. You agree to pay for the ability to use our service for a minimum term of 30 days beginning on the date the service is made available for your use, and renewing automatically until terminated (see Termination below). The minimum billing is for one month’s service. We offer prepaid service contracts of varying durations, some of which may be discounted, and are strictly non-refundable. Irrespective of the service duration you select, if service is terminated for any reason other than our breach, we will make no pro-rata adjustments or refunds of any previously paid fees. The rate we charge you may vary according to your specific needs, primarily the amount of disk storage available for your use and the number of computers that are authorized to use the service. In the event that your account remains unpaid at any time for more than thirty (30) days, we shall have the right to charge interest on the past due amount at an interest rate not to exceed one and one-half percent (1.5%) per month to be calculated monthly on the past due amount together with accumulated interest.We will assess you, and you agree to pay, a service fee of $35 per bounced check (or failed electronic funds transfer) if for any reason your financial institution does not pay us. If you pay us by credit card, and we subsequently receive an errant chargeback against your card, you agree for us to reprocess your charge along with an additional $25 service fee.
- DAMAGES EXCLUSION AND WARRANTY DISCLAIMER
We rightfully claim that the use of our services will greatly increase the likelihood that your files that get lost, damaged or destroyed may be successfully restored from a backup copy you have stored on our service. We will always do our best to use effective methods of storage and to make the contents of this storage readily available to you. Still, WE MAKE NO GUARANTEE OR WARRANTY THAT THE SYSTEM AND SERVICES WILL AVERT, AVOID OR PREVENT THE LOSS OF FILES, DATA OR INFORMATION THAT WE MAINTAIN. Any combination of natural disaster, technological failures and/or human activities may cause us to lose our copies of your files, although we believe the chances of loss to be extremely small. A critically important step in the installation of the backup software on each computer is the creation of a private encryption key. This key is used to secure copies of your files before they are transferred over the Internet to our storage facilities. This helps to ensure the confidentiality of your files, since without the key, the contents of your files cannot be understood. Should you ever need to retrieve backup copies of your files from us, your encryption key may be required – and you should assume it will be. WE HAVE NO READY WAY TO RECOVER YOUR PRIVATE ENCRYPTION KEY IF YOU LOSE IT AND YOUR COMPUTER SYSTEM HAS ALREADY FAILED. Therefore, under no circumstances will we be responsible for your files being unavailable due to your inability to accurately recall your private encryption key.It is also true that you, not we, are solely responsible for the selection of which files, folders or other information you desire the backup software to copy to our storage facilities. You are also responsible for ensuring that the backup software configuration is updated any time that changes occur on your computer or to the location(s) where you store information that you desire backed up.The software may not be able to make a copy of files or folders where it is denied access by the operating system of your computer – something we have no control over. Therefore, if your computer does not provide the software with access to the selected information, we cannot backup this information. Still, we will help you by phone and provide remote technical support to assist you in configuring the software, to the greatest degree possible, so that it does the right backups. We normally include this type of support service at no additional cost. But, the decision to ask for our assistance when needed is ultimately yours.
You acknowledge that the services rendered and the system as a whole are complex and may not be error-free. You do not desire this agreement to provide full insurance for loss, damage or injury because it would be unaffordable, and also we are not an insurance carrier.
Therefore, you agree that WE ARE NOT LIABLE, nor are our officers, members, contractors or employees liable, to you for damages. The DAMAGES EXCLUDED ARE: direct or indirect damages for personal injury or death, direct or indirect damages for loss of physical property, incidental damages, direct or indirect damages for loss of business profits, business interruptions, loss of business information or any other pecuniary loss, direct or indirect damages of any other description, damages that have in any way to do with the backup service we provide or to do with installing, adjusting, configuring or in any other way dealing with the software that we will or have installed on your computer(s).
This damages exclusion applies whether the allegation is for a breach of contract or warranty, negligence or any other tort, alleged breach of statute or any other allegation.
- CHANGES IN SERVICE FEES OR OTHER TERMS
From time to time and at our sole discretion we may increase the fees we collect from you for providing service. We must notify you of such an increase by electronic mail at least 30 days before the effective date of the rate change. If you are unwilling to pay the increased charges, you may terminate this Agreement upon giving us notice, by either email or letter, and discontinuing use of the service at the end of the current contract term. If you continue to use the service we will conclude you accept and agree to pay any revised service fees. We may be required to collect government mandated taxes from you in the future. These may be called sales tax, property tax, telecommunication tax or otherwise. Whatever called, if the taxes are a specific result of us serving you, we will automatically add these taxes to your bill and you agree to pay them.We may also from time to time and at our sole discretion change the terms of this Agreement. We must notify you of such a change by electronic mail at least 30 days before the effective date of the change. If you are unwilling to abide by the changes we make, you may terminate this Agreement upon giving notice by email or letter and discontinuing use of the service at the end of the current contract term.Every time your computer completes a backup using our service we will attempt to send an email to the address(es) you designate. Reading this email will help you to know whether things are happening as they should. It will also give important news and messages about our service, including changes to this Agreement, etc. When we send a change in terms to you in this way YOU AGREE NOW THAT IT BINDS BOTH OF US UNLESS YOU REJECT IT BY NOTIFYING US by email or letter. If you do so notify us, then your service will be terminated at the end of the current contract term, or immediately, if we in our sole discretion believe the changes to be of an emergency nature.
We shall have the right to assign this agreement to any person, firm or corporation to be carried out. You may assign this Agreement to a different user with written notice to us including proper billing instructions for the new user. Such user assignment shall be effective when we approve of the new user’s credit card, financial statement or with its prepayment of required service fees.
- INTERNET CIRCUITS
You are responsible for the cost, connection, installation, maintenance and all other aspect of all Internet communication circuits required for data file transmission and system access. All data files are transmitted over Internet circuits, which are wholly beyond our control and jurisdiction, and are maintained by the communication companies (often called Internet Service Providers or ISPs) engaged for service by you. If these Internet circuits are not functional for any reason, backup data files may not accurately or completely reach our facility or equipment. We cannot be responsible for the continued operation of these circuits nor the reliability of the data files being sent over them.
- SUSPENSION OF SERVICE
We may immediately, and without prior notice to you, suspend your access to the service if a court of apparently competent jurisdiction so orders us. In such a case, unless ordered otherwise, we will suspend your ability to do backups and restores. While your service is suspended, we will preserve your data that we hold. We may also suspend your service if we believe, in our sole discretion, that your use is abusive to our system. Instances of abuse may include, but are not limited to, storage levels chronically beyond those included in your service package or data transmission rates and/or durations that are excessive. In such a case we will notify you as promptly as possible and preserve your data that we hold for up to thirty (30) days as needed to resolve the abuse situation.
Either party may terminate this Agreement by written notice no less than thirty days (30) in advance of desired termination date. In the event of non-payment of fees, we may terminate service with a 10-day email notice to your latest known email address. Written notice of intent to cancel should be sent to:
Doctor Backup, LLC
8405 Cherry Laurel CT
Laurel, MD 20723
Or Email: firstname.lastname@example.org
If we terminate your service for any reason, you will no longer be permitted access to our storage facilities. We will hold onto your data for up to thirty (30) days after the termination so that you may request a physical copy be sent to you on electronic media. Additional data recovery charges may apply, and if so, must be pre-paid.
- WARRANTY BY YOUR AGREEMENT MAKER AND YOUR ACCEPTANCE
This is an Agreement that you or someone on your behalf AGREES TO BY CLICKING a button on a web form or BY CLICKING TO INSTALL A COPY OF THE BACKUP SOFTWARE on your computer. These actions are FULLY EFFECTIVE as a written signature. The individual clicking for this Agreement (“he/she”) warrants that he/she has the authority to make this Agreement on your behalf. He/she also warrants he/she has the authority to permit the installation of the backup software provided with the service on your computer(s). He/she also warrants that he/she has the authority to bind you to all the notices by email of tax collections, rate changes and terms changes described in section 4 of this Agreement. He/she does not merely substitute his/her responsibility for these but adds his/her responsibility to yours.
- COMPLETE AGREEMENT
This document, along with any specified addendum, is a complete Agreement. Any representation, promise, condition, inducement or warranty, express or implied, oral or written, unless expressed in writing in this Agreement or any addendum thereto, shall not bind either of us, and the terms and conditions hereof apply as printed without alteration or qualifications except as specifically here in writing.
If a court of competent jurisdiction declares any part of this Agreement void, that shall not nullify the balance of this Agreement, which shall remain in full force and effect.
- LITIGATION AND CHOICE OF LAW
This Agreement shall be interpreted and given legal effect according to the law of Maryland, the state in which our office is and where we were created as an LLC, except for Maryland’s choice of law rules. Any suit at law or in equity must be brought in a court of Maryland or the federal District of Maryland, and if in a state court then in Howard County.
- OUR ACCEPTANCE
This Agreement shall not be binding on us unless we show acceptance by notifying you that we have accepted, which normally happens when we are able to charge your credit card or we receive payment via check and email you a paid receipt.
Version – 12.7
STANDARD SOFTWARE LICENSE AGREEMENT FOR BACKUP SERVICE SOFTWARE
This software license agreement is a legal agreement between you as the Licensee (either an individual or an entity) and the Software Licensor. By opening the sealed software packet(s), clicking an “ACCEPT” button during installation or purchase, and/or using the software you are agreeing to be bound by the terms of this agreement.
- GRANT OF LICENSE. This License Agreement permits you to use one copy of the SOFTWARE on a single computer.
- COPYRIGHT. The SOFTWARE and accompanying materials (including any images, “applets”, photographs, animations, video, audio, music and text incorporated into the SOFTWARE and accompanying materials) is owned by the Licensor and is protected by United States copyright laws and international treaty provisions and all other applicable national laws. Therefore, you must treat the SOFTWARE and accompanying materials like any other copyrighted material (e.g. a book or musical recording) except that you may either (a) make one copy of the SOFTWARE solely for backup or archival purposes or (b) transfer the SOFTWARE to a single hard disk provided you keep the original solely for backup or archival purposes.
- RESTRICTED USES. You may not install or use this software on computers that are connected to life-saving or life-support medical equipment, nor on any equipment used in the production or administering of drugs or breathable gasses, nor on any equipment that, through malfunction or misuse, could directly or indirectly cause physical injury or death.
- OTHER RESTRICTIONS. You hereby agree not to reverse engineer, decompile or disassemble the SOFTWARE. You agree not to analyze the software, its data files, or transmission protocols in an attempt to discover its systems and methods of operation. You agree not to communicate to others any discovery of technical procedures, systems and methods, or protocol of the Software. You hereby agree that the Software does not infringe on any patent, copyright, trademark, or other intellectual property rights under your control either directly or indirectly, or under the control of any company or other entity to which you report. You agree to hold harmless the Licensor in any intellectual property dispute that might arise from the discovery or disclosure of such information by you as a result of a violation of this paragraph.
- U.S. GOVERNMENT RESTRICTED RIGHTS. The SOFTWARE and documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software– Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is the Licensor.
- EXPORT CONTROLS. You may not download or otherwise export or reexport the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. In particular, but without limitation, none of the Software or underlying information or technology may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Haiti, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
- INSTALLATION AND SUPPORT. You and/or your Service Provider are solely responsible for the installation and maintenance of the Software, and for the proper installation, configuration, and operation of the software and the hardware, supporting software, and services upon which the Software relies. You and/or your Service Provider are solely responsible for the configuration and operation of the Software. You are responsible for selecting the correct settings software. The Software is delivered with certain default settings which may not be appropriate for all Clients.
- TECHNICAL SUPPORT. Your Service Provider will provide technical support for the Software through whatever means it uses. The Licensor is NOT responsible, and will not provide, Technical Support directly to Clients.Product support for the SOFTWARE is provided by the Service Provider For product support, please refer to your Service Provider’s telephone number or web site.
- DEFINITIONS. “Licensor” is Online Holdings, LLC, of Eads, TN USA. “Service Provider” is the company or individual who provided this Software and who hosts the Server and provides remote backup services to you. If you are operating your own Server, YOU are the Service Provider
WARRANTY AND SPECIAL PROVISIONS FOR UNITED STATES OF AMERICA AND ANY OTHER COUNTRY LIMITED WARRANTY
LIMITED WARRANTY. Any implied warranties on the SOFTWARE are limited to fifteen (15) days. Implied warranty is voided by misapplication, misuse, attempted use outside the recommended software environment, on equipment or networks not suited to the SOFTWARE, or which could have been avoided by reading the documentation included with the Software.
CUSTOMER REMEDIES. The Licensor’s and Service Provider’s, its officers’ and employees’ entire liability and your exclusive remedy shall be, at the sole discretion of the Licensor or Service Provider, repair or replacement of the SOFTWARE that does not meet this Limited Warranty, or refund of money paid. This Limited Warranty is void if failure of the SOFTWARE has resulted from accident, abuse or misapplication.
NO OTHER WARRANTIES. To the maximum extent permitted by applicable law, the Licensor, its officers, and employees disclaim all other warranties, either express or implied, including but not limited to suitability for any particular purpose.
SERVICE PROVIDER’S WARRANTY. The Service Provider may have different warranty and return/refund policies than those outlined in the above paragraph for the Licensor. Check with your Service Provider or its Service Agreement for more information.
ACCEPTANCE OF THESE CONDITIONS. By clicking the “YES” button during software installation, or by downloading, installing or using the software, you accept the terms of this license agreement. You agree that you fully understand the capabilities of the software, and that you accept the software as-is.
This limited warranty gives you specific legal rights. You may have others which vary from state/jurisdiction to state/jurisdiction.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES. To the maximum extent permitted by applicable law, in no event shall the Licensor or the Service Provider, or their officers, or employees be liable for any damages whatsoever (including without limitation, direct or indirect damages for personal injury, loss of business profits, business interruptions, loss of business information or any other pecuniary loss) arising out of the use of or inability to operate this product, misapplication, failure to read and understand the operating instructions in all its forms – Help Files, Web based, printed, and verbal, even if the Licensor and/or the Service Provider has been advised of the possibility of such damages. In any case, the Licensor’s and the Service Provider’s, (including their officers’, and employees’) entire liability under any provision of this agreement shall be limited to the amount actually paid by you to the Licensor or the Service Provider for the SOFTWARE and any accompanying services.
IN NO EVENT SHALL THE LICENSEE, the SERVICE PROVIDER AND/OR THEIR OFFICERS OR EMPLOYEES BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTUOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF SOFTWARE, DOCUMENTS, PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR INFORMATION AVAILABLE FROM ANY OF THE LICENSOR’S OR SERVICE PROVIDER’S WEB SITES OR INFORMATION SERVICES.
Should it become necessary for the Licensor or Service Provider to retain counsel to enforce its rights, or defend any action or inaction under this agreement, you agree to pay all costs of such enforcement and/or defense, including, but not limited to, all court costs and other litigation expenses, together with the Licensor’s and/or Service Provider’s reasonable attorney fees. If the Licensor is a party, this agreement shall be governed by the laws of the state of Tennessee. If the Service Provider AND NOT the Licensor is a party, this agreement shall be governed by the laws of the state in which the Service Provider maintains its head office. In either case, this agreement shall inure to the benefit of the Licensor and/or Service Provider and any successors, administrators, heirs, and assigns. Any action or proceeding brought by either party against the other arising out of or related to this agreement shall be brought (if the Licensor is a party) only in a STATE or FEDERAL COURT of competent jurisdiction located in Shelby County, Tennessee; and if the Service Provider is a party, in the county and state in which the Service Provider maintains its head office. If both the Licensor and the Service Provider are parties, any action shall be brought only in a STATE or FEDERAL COURT of competent jurisdiction located in Shelby County, Tennessee. The parties hereby consent to in personam jurisdiction of said courts.
ThreatLocker End User License Agreement
THIS END-USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND THREATLOCKER, INC. (“THREATLOCKER”) FOR USE OF THREATLOCKER’S SECURITY SOFTWARE (THE “SOFTWARE”). IN THIS EULA, YOU AND YOUR COMPANY SHALL BE COLLECTIVELY REFERRED TO AS THE “END USER”. BY CLICKING ON THE “I AGREE” BUTTON, OR BY INSTALLING OR ACCESSING THREATLOCKER SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOLLOWING TERMS AND AGREE TO BE BOUND BY THEM, AND, IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS EULA ON BEHALF OF AN ENTITY, YOU REPRESENT, WARRANT, AND COVENANT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS EULA ON BEHALF OF SUCH ENTITY, AND BIND SUCH ENTITY TO THE TERMS AND CONDITIONS HEREOF. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS EULA, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS EULA OR ACCESS, USE OR INSTALL THE SOFTWARE.
END USER MAY HAVE ANOTHER WRITTEN AGREEMENT WITH THREATLOCKER (E.G., AN ENTERPRISE LICENSE AGREEMENT) THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT.
Subject to End User’s compliance with this EULA, ThreatLocker grants End User a limited non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) download, install and use a copy of the downloadable Software on a computer that End User owns or controls and to run such copy of the Software; and (b) access any hosted Software solely for End User’s internal business use. A use license is required for each computer, server, or device that has the Software installed. For devices that host remote sessions for any purpose other than system administration, including but not limited to Remote Desktop, SSH or Telnet sessions, an additional Software license is required for each End User that connects to that device that does not ordinarily connect from a device that already has a Software license.
2. Open-Source Software
Certain software code incorporated into or distributed with the Software may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the Apache License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in this EULA, the Open Source Software is not licensed under Section 1 and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. End User agrees to comply with the terms and conditions of such open-source software license agreements.
In addition to the data displayed through the Software, the Software may, from time to time, automatically report back information to ThreatLocker’s servers related to usage of the Software, without notice to End User (“Usage Data”). Usage Data may be used by ThreatLocker in compliance with all applicable laws, including helping diagnose and resolve technical and performance issues in relation to the Software. By using the Software, End User hereby consents to such collection, transmission, and use of data.
End User agrees that ThreatLocker and its suppliers own all rights, title and interest in and to the Software. End User will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software. Any rights not expressly granted by ThreatLocker in the EULA are reserved. End User acknowledges that End User acquires no ownership interest in the Software.
5. Use of the Software
1. Updates. ThreatLocker may require End User to accept updates to the Software that End User has installed on End User’s computer. End User acknowledges and agrees that ThreatLocker may update the Software with or without notifying End User. End Users may need to update third party software from time to time in order to use the Software.
2. Certain Restrictions. As a condition of use, End User agrees not to use the Software for any purpose that is prohibited by the EULA or by applicable law. End User shall not (and shall not permit any third party): (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Software, (b) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Software except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) interfere with or attempt to interfere with the proper functioning of the Software; (d) attempt to engage in or engage in, any potentially harmful acts that are directed against the Software or ThreatLocker, including but not limited to violating or attempting to violate any security features of the Software; (e) conduct any penetration testing on the Software without ThreatLocker’s prior written consent or (e) access the Software in order to build a similar or competitive website, Software or service. Any future release, update or other addition to the Software shall be subject to this EULA. ThreatLocker, its suppliers and service providers reserve all rights not granted in this EULA. Any unauthorized use of the Software terminates the licenses granted by ThreatLocker pursuant to this EULA.
6. Data Collection
1. ThreatLocker may collect and store End User Data to provide the Software, and share any End User Data with Company. For purposes of this EULA, “End User Data” means login usernames, IP addresses and hostnames that applications connect to, file names and full path, Hashes and SHAs and Files. Certificate Information (Not private keys), Status of Hard Drive Encryption. (Not encryption keys), Computer Hostnames, File Access Information, such as Read, Write, Execute, Delete, Move, and Computer Registry change information.
End User agrees to indemnify and hold ThreatLocker and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “ThreatLocker Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) any data End User submits to or through the Software; (b) End User’s use of, or inability to use, the Software; (c) End User’s violation of this EULA; (d) End User’s violation of any rights of another party, or (e) End User’s violation of any applicable laws, rules or regulations. ThreatLocker reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by End User, in which event End User will fully cooperate with ThreatLocker in asserting any available defenses. End User agrees that the provisions in this section will survive any termination of this EULA.
8. Disclaimer of Warranties.
1. END USER RESPONSIBILITY. THREATLOCKER OFFERS NO RECOMMENDATION AS TO WHAT SOFTWARE THE END USER SHOULD AND SHOULD NOT PERMIT. END USER’S IT PROFESSIONALS OR CYBER SECURITY EXPERTS SHOULD THOROUGHLY REVIEW POLICIES BY CREATED BY THREATLOCKER DURING THE ONBOARDING PROCESS. THE SOFTWARE’S BUILT-IN APPLICATION DEFINITIONS ARE INTENDED TO HELP THE END USER CREATE POLICIES. SUCH POLICIES SHOULD NOT BE CONSIDERED AN OPINION OR AN ENDORSEMENT OF THE APPLICATION OR THE APPLICATION’S VENDOR. WHILE THREATLOCKER’S PRODUCTS ARE INTENDED TO REDUCE THE RISK OF CYBER BREACHES THROUGH THE USE OF UNAUTHORIZED SOFTWARE, THE END USER SHOULD CONTINUE TO IMPLEMENT BEST PRACTICES AND BUILD A FULL DEFENSE AGAINST CYBER ATTACKS. THE END USER SHALL BE RESPONSIBLE FOR MANAGING AND CREATING APPLICATION POLICIES. WITHOUT THE CORRECT POLICIES, THE SOFTWARE WILL NOT STOP ANY UNAUTHORIZED SOFTWARE FROM RUNNING.
2. AS IS. END USER EXPRESSLY UNDERSTANDS AND AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, END USER’S USE OF THE SOFTWARE IS AT END USER’S SOLE RISK, AND THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE THREATLOCKER PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE THREATLOCKER PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SOFTWARE WILL MEET END USER’S REQUIREMENTS; (2) THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. THE SOFTWARE MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THE THREATLOCKER PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY DATA THROUGH THE SOFTWARE.
9. Limitation of Liability.
1. DISCLAIMER OF CERTAIN DAMAGES. END USER UNDERSTANDS AND AGREES THAT IN NO EVENT SHALL THREATLOCKER PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT THREATLOCKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS EULA, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SOFTWARE; (2) DATA END USER SUBMITS THROUGH THE SOFTWARE; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF END USER’S TRANSMISSIONS OR DATA; OR (4) ANY OTHER MATTER RELATED TO THE SOFTWARE.
2. CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL THE THREATLOCKER PARTIES BE LIABLE TO END USER IN THE AGGREGATE FOR MORE THAN ONE HUNDRED DOLLARS ($100.00).
3. BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THREATLOCKER AND END USER.
10. Confidential Information
1. It is expected that the parties will disclose to each other certain confidential information (“Confidential Information”) and each party recognizes the value and importance of the protection of the other’s Confidential Information. All Confidential Information of one party (the “Disclosing Party”) that is disclosed to the other party (“Recipient”) shall remain the sole property of the Disclosing Party (or its licensors), which shall own all rights, title, interest and intellectual property rights therein. Only information which is identified as confidential pursuant to the next paragraph shall be deemed Confidential Information hereunder, except that End User agrees and acknowledges that, in all cases, the Software constitutes ThreatLocker’s Confidential Information.
2. A Disclosing Party may designate information as confidential by: (a) marking written information or other physical media as “Confidential” prior to disclosure; (b) indicating in the visual display of a program that the program is confidential; (c) identifying oral information as confidential at the time of disclosure to Recipient, or (d) notifying the Recipient in writing prior to disclosure that certain specifically identified types of information are considered to be confidential.
3. Except as expressly allowed in this EULA, the Recipient agrees not to duplicate in any manner the Disclosing Party’s Confidential Information or to disclose it to any third party or to any of Recipient’s employees not having a need to know same to implement this EULA. The Recipient shall ensure that any such third party or employee is bound by written confidentiality provisions at least as restrictive as those contained in this EULA. Each Recipient agrees to keep the Disclosing Party’s Confidential Information in a safe and secure place; protect it from unauthorized use or disclosure, and monitor access to it. Recipient shall use the Disclosing Party’s Confidential Information solely for the implementation of this EULA and for no other purpose, whether for Recipient’s own benefit or the benefit of any third party.
4. Recipient’s obligations to maintain confidentiality shall not apply to information which Recipient can prove: (i) is or becomes a part of the public domain; (ii) was in Recipient’s lawful possession prior to the disclosure and had not been subject to limitations on disclosure or use; (iii) is entirely independently developed by Recipient without any knowledge or reference to the Confidential Information of the other party; (iv) is lawfully disclosed hereafter to Recipient, without restriction, by a third party who did not acquire the information from the Disclosing Party; or (v) is disclosed to the minimum required by a court of competent jurisdiction after Recipient has obtained a protective order therefore, if available.
11. Term and Termination
1. Term. This EULA will commence on the date when End User accepts it (as described in the preamble above) and remain in full force and effect until terminated in accordance with this Section 7.
2. Termination by ThreatLocker. If End User has breached any provision of this EULA or ThreatLocker suspects that End User has breached any provision of this EULA, or if ThreatLocker is required to do so by law (e.g., where the provision of the Software, or End User’s use of the Software, is, or becomes, unlawful), ThreatLocker has the right to suspend or terminate any services provided to End User. End User agree that all terminations for cause shall be made in ThreatLocker’s sole discretion and that ThreatLocker shall not be liable to End User or any third party for any such termination.
3. Effect of Termination. Upon termination, the license granted hereunder shall terminate and End User shall immediately destroy or return any copies of the Software in End User’s possession. All provisions of this EULA which by their nature should survive, shall survive termination of this EULA, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
12. Changes to Terms and Conditions
ThreatLocker reserves the right to change the terms and conditions of this EULA or its policies relating to the Software and support services at any time. We will notify End User of any material changes to this EULA by sending End User an e-mail to the last e-mail address End User provided to us or by prominently posting notice of the changes on our website. Any material changes to this EULA will be effective upon the earlier of: (i) thirty (30) calendar days following our dispatch of an e-mail notice to End User, or (ii) thirty (30) calendar days following our posting of notice of the changes on our website. These changes will be effective immediately for new users of our Software. Please note that at all times End User is responsible for providing us with End User’s most current e-mail address. In the event that the last e-mail address that End User has provided us is not valid, or for any reason is not capable of delivering to End User the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. If End User does not agree with the changes to this EULA, End User must notify us prior to the effective date of the changes that End User wishes to terminate End User’s license to the Software. Continued use of the Software and support services, following notice of such changes, shall indicate End User’s acknowledgment of such changes and agreement to be bound by the terms and conditions of such changes.
13. Export Control
End User may not use, export, import, or transfer the Software except as authorized by U.S. law, the laws of the jurisdiction in which End User obtained the Software, and any other applicable laws. In particular, but without limitation, the Software may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Software, End User represents and warrants that (i) End User is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) End User is not listed on any U.S. Government list of prohibited or restricted parties. End User also will not use the Software for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. End User acknowledges and agrees that products, services or technology provided by ThreatLocker are subject to the export control laws and regulations of the United States. End User shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer ThreatLocker products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
14. End User Rights
End user may not assign rights nor the obligations arising under this EULA, and any such attempted assignment or transfer shall be void and without effect. This EULA shall be governed by and construed in accordance with the laws of the State of Florida without regard to conflict of laws provisions. Any action under or relating to this EULA shall be brought solely in the state and federal courts located in Florida with sole venue in the courts located in the county in which ThreatLocker’s principal place of business is located and each party hereby submits to the personal jurisdiction of such courts, except that ThreatLocker may seek relief in any court of competent jurisdiction to protect or enforce its intellectual property and proprietary rights. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this EULA. In the event that any provision of this EULA is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the parties, with the other provisions remaining in full force and effect. Any notice to Customer may be provided by email. This EULA constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly canceled. Except as otherwise expressly provided in this EULA, any modifications of this EULA must be in writing and agreed to by both parties.