ATTENTION: THIS IS A LICENSE NOT A SALE. BEFORE DOWNLOADING, INSTALLING OR USING THE PLURILOCK SOFTWARE, PLEASE CAREFULLY READ THIS LICENSE WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU OR YOUR ORGANIZATION ARE ACQUIRING A LICENSE TO USE THE PLURILOCK SOFTWARE, END USER-SPECIFIC ENHANCEMENTS CARRIED OUT BY PLURILOCK, MODIFICATIONS OR CUSTOMIZATIONS THERETO (IF ANY) AS DESCRIBED HEREIN, IN OBJECT CODE FORM ONLY (COLLECTIVELY, THE “LICENSED SOFTWARE”), AND ALL RELATED USER DOCUMENTATION, INCLUDING LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES.
THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE END USER (OR YOUR ORGANIZATION) (THE “END USER” OR “YOU”) AND PLURILOCK SECURITY INC., A CANADIAN CORPORATION OR ANY ONE OF IT’S SUBSIDIARIES OR AFFILIATES, AS APPLICABLE (“PLURILOCK”).
IF YOU ARE AN EMPLOYEE, AGENT OR CONTRACTOR OF ANOTHER ENTITY OR OTHERWISE INSTALLING OR USING THIS LICENSED SOFTWARE BY OR ON BEHALF OF AN ORGANIZATION OR ANY OTHER THIRD PARTY, YOU REPRESENT AND WARRANT TO PLURILOCK THAT YOU HAVE ALL REQUISITE CAPACITY, RIGHT, POWER AND AUTHORITY TO ACCEPT THIS LICENSE ON BEHALF OF SUCH ENTITY; AND SUCH ENTITY SHALL BE IRREVOCABLY BOUND BY AND SHALL COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT INSTALL, DOWNLOAD OR IN ANY WAY USE THE LICENSED SOFTWARE AND PROMPTLY RETURN THE UNOPENED OR UNINSTALLED LICENSED SOFTWARE, OR ANY HARDWARE OR EQUIPMENT CONTAINING THE LICENSED SOFTWARE, TO THE PLACE AT WHICH YOU ACQUIRED IT FOR A FULL REFUND OF ANY LICENSE FEE PAID. IF YOU OPEN THE LICENSED SOFTWARE OR INSTALL, DOWNLOAD OR USE IT, YOU WILL BE ACQUIRING A LICENSE TO USE THE LICENSED SOFTWARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU WILL BE CONSIDERED TO HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS.
Capitalized terms shall have the meanings set forth in this Section 1 or as otherwise defined elsewhere in this Agreement.
1.1. “Affiliate” shall mean with respect to a company, any corporation, partnership or other entity that, directly or indirectly, owns, is owned by, or is under common ownership with such company for so long as such ownership exists. For the purpose of the foregoing, “own”, “owned” or “ownership” shall mean holding ownership of, or the right to vote, more than fifty (50) percent of the voting stock or ownership interest entitled to elect a board of directors or comparable managing authority.
1.2. “Confidential Information” means any material or information relating to a Party’s research, development, products, product plans, services, clients, customer lists, markets, software, deliverables, developments, Documentation, inventions, processes, formulas, price lists, technologies, designs, drawings, marketing, finances, or other business information or trade secrets that such disclosing Party treats as proprietary or confidential. Without limiting the foregoing, the Products, any material or information relating to the Products, Documentation, inventions, pricing or other business information of Plurilock shall constitute Confidential Information of Plurilock.
1.3. “Documentation” means Plurilock’s standard user manuals and/or related documentation delivered by Plurilock with the Licensed Software, as may be updated by Plurilock from time to time.
1.4. “Effective Date” shall mean the date of installation of the Licensed Software by End User;
1.5. “Intellectual Property Rights” means all rights in any invention, discovery, improvement, utility model, patent, copyright, trademark, industrial design or mask work right, and all rights of whatsoever nature in computer software and data, Confidential Information, trade secrets or know-how, and all intangible rights or privileges of a nature similar to any of the foregoing, in every case in any part of the world whether or not registered, and will include all rights in any applications and granted registrations for any of the foregoing rights;
1.6. “Licensed Software” means the software you are installing or accessing in Plurilock’s cloud-based platform for which you have been given an access license key by Plurilock or its authorized distributor or its licensor including any modifications, customizations or enhancements provided by Plurilock or its authorized distributors
1.7. "Order" means the documents for placing user subscription orders to Plurilock that are entered into between End User and Plurilock or its authorized distributors or resellers from time to time, including addenda and supplements thereto.
1.8. “Parties” shall mean Plurilock and End User collectively and “Party” means either of them.
1.9. “Term” has the meaning set out in Section 6.
2. LICENSE TERMS
2.1. Permitted Use Subject to all of the terms and conditions of this Agreement, Plurilock hereby grants to End User a limited, non-transferable, non- sublicensable and non-exclusive license to use:
(a) only the licensed number of instances of the Licensed Software; and
(b) the Documentation provided therewith, solely for End User’s own internal business purposes and subject to such other restrictions as may be set out in the applicable Order. End User shall not use the Licensed Software or Documentation, in whole or in part, on behalf of or for the benefit of any other person except as expressly provided herein or as agreed in an Order executed by both parties.
2.2. Reservation of Rights. The rights and licenses granted under this Agreement are only as expressly set forth herein. No other license or right is or will be deemed to be granted, whether by implication, estoppel, inference or otherwise, by or as a result of this Agreement or any conduct of either party under this Agreement. Plurilock and its licensors shall retain all right, title, and interest (including all Intellectual Property rights) in, to, and under the Products. End User shall not remove from the Software any copyright, trademark, confidentiality, or other proprietary notices of Plurilock or its licensors. In addition, End User shall follow good proprietary rights practices and procedures to protect Plurilock and its licensor’s rights, including practices and procedures that are no less than those may End User follows to protect its own proprietary rights.
2.3. Restrictions. End User shall not: (i) disassemble, reverse translate, decompile modify, adapt, alter, translate or creative derivative works of the Products in whole or in part or in any other manner decode the Software except to the extent that the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary (ii) merge the Products with other software; (iii) use the Products to support any third parties, whether through a services engagement, outsourcing, service bureau, time-sharing, ASP or otherwise; (iv) assign, sublicense, sell, lease or otherwise transfer or convey, or pledge as security or otherwise encumber the rights in the Products granted by Plurilock in this Agreement; or (v) use the Products or Documentation except as authorized by this Agreement.
3.1. Ownership of Confidential Information. The Parties acknowledge that during the Term of this Agreement, each Party will have access to certain of the other Party’s Confidential Information. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party and shall, as between the Parties, remain the sole property of the disclosing Party or such third party.
3.2. Confidentiality Obligations. Unless otherwise set forth in an Agreement, each Party (as “ Receiving Party”) agrees: (a) to use the Confidential Information provided to it by the other Party (“ Disclosing Party”) only for the purposes described herein; (b) that it will not reproduce the Disclosing Party’s Confidential Information and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that it will not create any derivative work from Disclosing Party’s Confidential Information; (d) to restrict access to the Disclosing Party’s Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; or (e) to return or destroy all Confidential Information of the Disclosing Party in its possession upon termination or expiration of this Agreement.
3.3. Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 3.1 and 3.2 shall not apply to Confidential Information that: (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the Receiving Party; (c) is rightfully communicated to the Receiving Party by persons not bound by confidentiality obligations with respect thereto; (d) can be demonstrated to have already been in the Receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) can be demonstrated to have been independently developed by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information; or (f) is approved for release or disclosure by the Disclosing Party without restriction. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Receiving Party shall first have given written notice to the Disclosing Party and made a reasonable effort to obtain a protective order.
3.4. Injunctive Relief. Because of the unique nature of the Confidential Information, Receiving Party understands and agrees that the Disclosing Party may suffer irreparable harm in the event that Receiving Party fails to comply with any of its obligations set forth in this Section 3 and that monetary damages may be inadequate to compensate Disclosing Party for such breach. Accordingly, Receiving Party agrees that Disclosing Party, in addition to any other remedies available to it at law or in equity for actual damages, shall be entitled to injunctive relief to enforce the terms of this Agreement.
4. WARRANTIES AND DISCLAIMERS
TO THE GREATEST EXTENT PERMITTED BY LAW, THE LICENSED SOFTWARE IS LICENSED BY PLURILOCK TO END USER "AS IS" AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THE LICENSED SOFTWARE OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. PLURILOCK, ITS LICENSORS AND SUPPLIERS DISCLAIM ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE.
NEITHER PLURILOCK NOR ITS LICENSORS MAKE ANY REPRESENTIONS OR PROVIDE ANY WARRANTIES OR CONDITIONS THAT THE LICENSED SOFTWARE SHALL MEET ANY OR ALL OF END USER’S PARTICULAR REQUIREMENTS, THAT ALL ERRORS OR DEFECTS IN THE LICENSED SOFTWARE CAN BE FOUND OR CORRECTED. NEITHER PLURILOCK NOR ANY OF ITS LICENSORS MAKE ANY REPRESENTIONS OR PROVIDE ANY WARRANTIES OR CONDITIONS THAT THE LICENSED SOFTWARE WILL PROVIDE SUITABLE NOTIFICATION TO NOTIFY END USER OF INTRUSION BY UNAUTHORISED PERSONNEL, ALLOW OR ENABLE ANY PERSONS TO AVOID BODILY INJURY OR DEATH OR PREVENT ANY DAMAGE TO TANGIBLE, INTANIGIBLE, OR REAL PROPERTY. THE LICENSED SOFTWARE SHOULD BE USED IN ADDITION TO AND NOT REPLACE OTHER PHYSICAL SECURITY SYSTEMS.
5. LIMITATION OF LIABILITY
EXCEPT FOR DAMAGES ARISING FROM A BREACH OF SECTION 2 (LICENSE TERMS) OR SECTION 3 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PLURILOCK’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE GREATER OF: (I) ONE HUNDRED THOUSAND DOLLARS (U.S. $100,000.00); OR (II) THE TOTAL AMOUNT OF ALL FEES HAVING BEEN PAID BY END USER TO PLURILOCK PURSUANT TO THIS AGREEMENT DURING THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THESE LIMITATIONS ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE
The disclaimer of warranty, limited warranty, exclusive remedies and limited liability set out herein are fundamental of the basis of the bargain between Plurilock and End User, and End User acknowledges and agrees that Plurilock would not be able to provide the Licensed Software for the fees charged without such limitations.
6. TERM AND TERMINATION
6.1. Term of this Agreement. If Purilock agrees to the evaluation request, Plurilock will provide End User with access to the Licensed Software for a period of fifteen days. The evaluation period may be extended with written authorization by Plurilock.
6.2. Termination. End User’s evaluation access to the Licensed Software will terminate at the end of the period defined in section 6.1. However, Purilock may terminate End User’s evaluation access at any time upon written notice.
6.3. Effects of Termination. Upon termination by Plurilock, End User shall promptly:
(a) Purge all Licensed Software from all computer systems, storage media, and any and all other devices and files with which the Licensed Software is used;
(b) Return to Plurilock or destroy all copies (including any partial copies) of the Licensed Software and related Documentation;
(c) If requested by Plurilock, certify to Plurilock in writing that End User has complied with the foregoing obligations and have not provided total or partial copies of the Licensed Software or Documentation to any third party;
(d) Return or destroy (at Plurilock’s discretion) all Confidential Information and all copies, summaries and extracts thereof, retaining no copies or partial copies.
6.4. Survival. Any provision of this Agreement which is required to ensure that the Parties fully exercise their rights and their obligations hereunder shall survive any termination or expiration unless and until waived expressly in writing by the party to whom they are of benefit.
7.1. Subject to Section 7.2 and 7.3 below, Plurilock shall indemnify and hold harmless End User and its officers, directors, employees and agents (the “Indemnified Parties”) from and against all third party claims that the Licensed Software infringes any copyright, patent right, trade secret right, or other intellectual property right (“Claim”) provided that such claim is not due to the combination of the Licensed Software with any other software, data or products not provided by Plurilock, which claim would have been avoided if the Licensed Software had not been so combined.
7.2. In the event that the Licensed Software is, or in Plurilock’s opinion is likely to be, enjoined or subject to a Claim, Plurilock, at its option and expense, may (a) replace the Licensed Software with functionally equivalent non-infringing Licensed Software or (b) obtain a license for End User’s continued use of the Licensed Software, or, if the foregoing alternatives are not reasonably available to Plurilock, (c) terminate this Agreement and refund any sums prepaid for the unused license term, if any.
7.3. End User shall promptly notify Plurilock in writing of a Claim and provide Plurilock with reasonable assistance in the defense of the claim at Plurilock’ request and expense. Plurilock shall have sole defense of the Claim but End User may participate with counsel of its own choosing at its own expense.
7.4. THE FOREGOING IS PLURILOCK’ SOLE AND EXCLUSIVE LIABILITY, AND THE INDEMNIFIED PARTIES’ SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
8.1. Notices. All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the Parties to this Agreement and sent to the address set forth above or addressed to such other address as that Party may have given by written notice in accordance with this provision. All notices sent by Reseller to Plurilock must be sent to the attention of “Legal Services.”
8.2. Assignment. End User may not assign its rights or delegate its obligations under this Agreement without Plurilock’s prior written consent and, absent such consent, any purported assignment or delegation by End User shall be null, void and of no effect. Plurilock may assign this Agreement to any party that acquires all or substantially all of its related business by merger, sale of stock or assets, or otherwise or to an affiliate of Plurilock. This Agreement shall be binding upon and inure to the benefit of Plurilock and End User and their permitted successors and assigns.
8.3. Independent Contractors. End User and Plurilock acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, agency, partnership, employment relationship or franchise between them, and that the Parties are acting as independent contractors in making and performing under this Agreement.
8.4. Amendment; Waiver. No amendment to this Agreement shall be valid unless made in writing and signed by an authorized representative of each Party. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought.
8.5. U.S. Government End Users. If the Products are acquired by or on behalf of a U.S. Government civilian agency, such agency acquires this commercial computer software and/or commercial computer software documentation, both as defined by 48 C.F.R. 2.101, subject to the terms of Plurilock’s commercial software license agreement per 48 C.F.R. 12.212 (Computer Software) and its successors. If the Products are acquired by or on behalf of a U.S. Government defense agency within the Department of Defense, such agency acquires this commercial computer software and/or commercial computer software Documentation, both as defined by 48 C.F.R. 252.227-7014, subject to the terms of Plurilock’s commercial software license agreement per 48 C.F.R. 227.7202 and its successors.
8.6. Severability. If any provision of this Agreement is invalid or unenforceable for any reason, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction.
8.7. No Third-Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties, their permitted successors and assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
8.8. Publicity. End User agrees that Plurilock may include End User’s name in a general list representative of Plurilock’s customers and use End User’s corporate name and logo in Plurilock’s marketing materials, including identification on the Plurilock website and, subject to End User’s review, issue a press release indicating that End User has elected to use Plurilock products and services.
8.9. Headings. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
8.10. Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, USA if End User’s business is based in the USA or otherwise in Vancouver, British Columbia, Canada, if End User’s business is based anywhere else in the world. This Agreement expressly excludes that body of law applicable to choose of law and the United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such Convention, if otherwise applicable. If either Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover reasonable attorney’s fees. Each Party waives any right, and agrees not to apply to have any disputes under this Agreement tried or otherwise determined by a jury, except where required by law.
8.11. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither Party shall be bound by any conditions, inducements or representations other than as expressly provided for herein
IMPORTANT NOTICE: THIS IS A LICENSE, NOT A SALE. THIS END USER LICENSE AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (OR YOUR ORGANIZATION), THE END USER, AND PLURILOCK FOR THE LICENSED SOFTWARE. IF YOU ARE SEEING THIS NOTICE ON INSTALLATION, BY CLICKING ON “I ACCEPT” BELOW, END USER SHALL BE DEEMED BY PLURILOCK TO HAVE IRREVOCABLY AGREED TO BE BOUND BY AND COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF END USER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK “I REJECT”, AND DO NOT INSTALL OR USE THE LICENSED SOFTWARE. END USER’S INSTALLATION OR USE OF THE LICENSED SOFTWARE SHALL BE DEEMED BY PLURILOCK TO BE END USER’S IRREVOCABLE CONSENT TO BE BOUND BY AND COMPLY WITH ALL OF THE TERMS OF THIS AGREEMENT.
IF YOU ARE AN EMPLOYEE, CONTRACTOR OR OTHERWISE INSTALLING OR USING THIS LICENSED SOFTWARE BY OR ON BEHALF OF AN ORGANIZATION OR ANY OTHER THIRD PARTY, YOU REPRESENT AND WARRANT TO PLURILOCK THAT:
A. YOU ARE OF THE AGE OF MAJORITY IN YOUR JURISDICTION;
B. YOU HAVE ALL REQUISITE CAPACITY, RIGHT, POWER AND AUTHORITY TO ACCEPT THIS LICENSE ON BEHALF OF SUCH ENTITY; AND
C. SUCH ENTITY SHALL BE IRREVOCABLY BOUND BY AND SHALL COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
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