END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) constitutes a valid and binding agreement between 1905 LLC, (together with its affiliates, successors and assigns “1905”) and you (“you,” or “your”) for the use of the 1905 Software, as the term is defined below. You must enter into this agreement in order to install and use 1905 Software.
BY INSTALLING AND USING THE 1905 SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE 1905 SOFTWARE.
1. License Grant
Subject to the terms of this Agreement, 1905 hereby grants you a limited, perpetual, non-exclusive, non-sublicensable, non-assignable (except as set forth herein) license to download, install and use a single copy of the 1905 Software, including any online or enclosed documentation, data distributed to your computer for processing and any future programming fixes, updates and upgrades provided to you (collectively, the “1905 Software”), onto a network server or computer workstation for your sole use to install, interact with and utilize the 1905 Software, including the content and features contained therein. This license may not be shared, transferred to or used concurrently on different servers or workstations. You may make a single back-up copy of the software for archival purposes.
2. License Restrictions
(a) Notwithstanding anything to the contrary, you may not: (i) remove any proprietary notices from the 1905 Software or any copy thereof; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling or disassembling or hacking of the 1905 Software; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the 1905 Software, including, without limitation, through sublicense, to any other entity without the prior written consent of 1905; (iv) export or re-export the 1905 Software in violation of United States export laws; (v) use the 1905 Software for any commercial purpose or the benefit of any third party or charge any person for the use of the 1905 Software; or (vi) use the 1905 Software to, or in any way that would violate any applicable law, regulation or ordinance; (vii) collect any information or communication about the users of the 1905 Software by monitoring, interdicting or intercepting any process of the 1905 Software; and (viii) use any type of bot, spider virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to distort, delete, damage or disassemble the 1905 Software. Furthermore, you may not use the 1905 Software to develop, generate, transmit or store information that: (A) infringes any third party’s intellectual property or other proprietary right; (B) is defamatory, harmful, abusive, obscene or hateful; (C) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the 1905 Software, (D) performs any unsolicited commercial communication not permitted by applicable law; (E) is harassment or a violation of privacy or threatens other people or groups of people; and (F) impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).
(b) The 1905 Software contains confidential and trade secret information owned or licensed by 1905, and you agree to take reasonable steps at all times to protect and maintain the confidentiality of such information.
(c) The 1905 Software may be incorporated into, and may incorporate, technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to 1905 to enforce any of your rights. All modifications or enhancements to the 1905 Software remain the sole property of 1905. 1905 reserves the right to add additional features or functions to the 1905 Software. You acknowledge and agree that 1905 has no obligation to make available to you any subsequent versions of its software applications.
3. Permission to Utilize
In order to receive the benefits provided by the 1905 Software, you hereby grant permission for the 1905 Software to utilize the processor and bandwidth of your computer. You understand that the 1905 Software will protect the privacy and integrity of your computer resources and communication and ensure the unobtrusive utilization of your computer resources to the greatest extent possible. Without limiting the above, 1905 shall keep confidential and not disclose any of your confidential or proprietary information it becomes aware of or receives as a result of your use of the 1905 Software. You hereby grant 1905 the right to use your trade name and your corporate logo in connection with 1905 promotional materials and to identify you as a customer of 1905, and agree that 1905 may announce this deal in a press release.
4. Proprietary Rights
The 1905 Software contains proprietary and confidential information of 1905, including copyrights, trade secrets and Marks contained therein, which are protected by international copyright laws. Title to and ownership of the 1905 Software, including without limitation all intellectual property rights therein and thereto, are and shall remain the exclusive property of 1905 and its suppliers, and except for the limited license granted to you, 1905 reserves all right, title and interest in and to the 1905 Software. You shall not take any action to jeopardize, limit or interfere with 1905’s ownership of and rights with respect to the 1905 Software. You acknowledge that any unauthorized copying or unauthorized use of the 1905 Software is a violation of this Agreement and copyright laws and is strictly prohibited.
5. Terms and Termination.
(a) This Agreement will be effective as of the date you accept this Agreement, thereby expressly agreeing to the terms and conditions set forth herein, and will remain effective until terminated by either party as set forth below.
(b) You may terminate this Agreement at any time provided you cease all use of the 1905 Software AND destroy or remove from all hard drives, networks, and other storage media all copies of the 1905 Software in your possession. 1905 may terminate this Agreement if you do not comply with the terms and conditions of this Agreement by providing notice to you and/or preventing your access to the 1905 Software. After notice from 1905 of your failure to comply with the terms and conditions of this Agreement you shall have five (5) working days to cure such noncompliance. If you fail to cure the noncompliance 1905 may terminate as set forth herein.
(c) Upon termination of this Agreement for any reason (i) all licenses and rights to use the 1905 Software shall terminate and you must remove the 1905 Software from your computer equipment and dispose of all originals and copies of the 1905 Software in your possession, and (ii) Sections 2, 4, 5(b), and 7 through 13 shall survive such termination.
(d) Nothing herein shall require you to destroy, erase, alter or amend backup tapes or other media you keep in the ordinary course for purposes of archival and disaster recovery.
6. Representations and Warranties
(a) You represent and warrant that (i) you possess the legal right and ability to enter into this Agreement and to comply with its terms, (ii) you will use the 1905 Software for lawful purposes only and in accordance with this Agreement and all applicable laws, regulations and policies, (iii) you will not attempt to decompile, reverse engineer or hack the 1905 Software to defeat or overcome any encryption and/or other technical protection methods implemented by 1905 with respect to the 1905 Software and/or data transmitted, processed or stored by 1905 or other users of the 1905 Software, (iv) you will not take any steps to interfere with or in any manner compromise any of 1905’s security measures, any other individual’s or entity’s computer on the Network and/or otherwise sharing Services, (v) you will always provide and maintain true, accurate, current and complete information as requested by 1905 to the extent same is kept by you and related to your use of the 1905 Software, and (vi) you will only use the 1905 Software on a computer on which such use is authorized by the computer’s owner or authorized user. (b) You agree that you will not use any automatic or manual device or process to interfere or attempt to interfere with the proper working of the 1905 Software, except to remove the 1905 Software from a computer of which you are an owner or authorized user in a manner permitted by this Agreement. You may not violate or attempt to violate the security of the 1905 Software. 1905 reserves the right to investigate occurrences which may involve such violations, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations. (c) If 1905 has reasonable grounds to suspect that your representations, warranties or promises are inaccurate or breached, 1905 may terminate this license, deny any or all use of the 1905 Software, and pursue any appropriate legal remedies.
(b) 1905 represents and warrants that (i) the 1905 Software shall perform as set forth in any descriptions or specifications provided by 1905 to you, (ii) the 1905 Software shall be free from a bot, spider virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to distort, delete, damage or disassemble your computer systems, electronic files or data, (iii) to its knowledge, is free from any errors or bugs that will render 1905 Software unusable for any period of time or substantially decreases the speed or usability of the 1905 Software, or (iv) to its knowledge infringes the property intellectual rights of third parties.
You agree to indemnify, hold harmless and defend 1905 and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents and network service providers at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by 1905 arising out of or relating to your (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, or (b) use or misuse of the 1905 Software.
1905 agrees to indemnify, hold harmless and defend you and your affiliates, parent companies, subsidiaries, officers, directors, employees, agents and network service providers at 1905’s expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by you arising out of or relating to 1905’s (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, or (b) claims that the 1905 Software infringes the intellectual property rights of third parties.
If the 1905 Software becomes the subject of an intellectual property infringement claim, 1905 may, at its sole option, (a) procure for you a license to continue using the 1905 Software in accordance with this Agreement; (b) replace or modify the allegedly infringing portion of the 1905 Software to avoid the infringement, or (iii) terminate this Agreement and refund any prepaid fees as applicable to the period after termination. This section sets forth your sole remedy in the event of any third party infringement claim regarding the 1905 Software.
The party seeking indemnification (the “Indemnified Party”), will give to the other party (the “Indemnifying Party”) prompt written notice and control of the defense and settlement of, and reasonable assistance and information regarding, the claim. The Indemnified Party’s failure to do so will not relieve the Indemnifying Party of its obligations under this section except to the extent the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party may participate in (but not control) the defense and/or settlement of any such claim at its own expense but may not settle or compromise the claim without the Indemnifying Party’s written consent. The Indemnifying Party will not settle or compromise any such action in a manner that does not include a release of the Indemnified Party from all liability with respect to the claim.
If a claim of indemnification is made pursuant to this Agreement the indemnified party upon learning of a matter for which it is indemnified shall promptly send notice to the indemnifying party specifying in reasonable detail the matter for which it is indemnified. The indemnifying party shall have five (5) working days to accept the defense of the indemnified matter. The indemnifying party shall have the right to control the defense of the indemnified matter, provided it keeps the indemnified party reasonably informed. If the Indemnifying Party fails to accept the defense of the indemnified matter the Indemnified Party shall have the right to defend and resolve such matter as it seems fit and all costs and expenses, including, but not limited to, any judgment or settlement, shall be the responsibility of the Indemnifying Party.
8. Disclaimer of Warranties
(a) EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE 1905 SOFTWARE IS PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY 1905, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE 1905 SOFTWARE, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. EXCEPT AS EXPLICITLY SET FORTH HEREIN, 1905 FURTHER DOES NOT REPRESENT OR WARRANT THAT THE 1905 SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE, OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES 1905 WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
(b) EXCEPT AS EXPLICITLY SET FORTH HEREIN, YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE 1905 SOFTWARE REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW.
(c) THE 1905 SOFTWARE IS UTILIZED AND DISTRIBUTED BY THIRD PARTIES WHICH ARE UNRELATED TO 1905. YOU ACKNOWLEDGE THAT INSTALLATION OF THE 1905 SOFTWARE WILL ALLOW THIRD PARTIES WHO ARE NOT AFFILIATED WITH 1905 THE ABILITY TO COMMUNICATE WITH YOUR COMPUTER (“OUTSIDE PARTIES”). YOU AGREE THAT 1905 WILL NOT BE LIABLE FOR ANY DAMAGE, CLAIM OR LOSS OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES AS STATED IN PARAGRAPH 9(a) ABOVE, RESULTING FROM ANY ACTIONS OR OMISSIONS OF THE OUTSIDE PARTIES.
(d) As some jurisdictions do not allow some of the exclusions set forth in this Section 9, some of these exclusions may not apply to you.
9. Limitation of Liability
(a) EXCEPT WITH RESPECT TO A MATTER FOR WHICH YOU ARE INDEMNFIED, IN NO EVENT SHALL 1905, ITS AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR NETWORK SERVICE PROVIDERS BE LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OR OTHER THEORY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE 1905 SOFTWARE, EVEN IF 1905 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (b) Support for the 1905 Software is not provided directly by 1905. Please refer to Manufacturer’s or Reseller’s documentation to understand your rights, if any, to technical or product support to the 1905 Software. (c) As some jurisdictions do not allow some of the exclusions set forth in this Section 10, some of these exclusions may not apply to you.
10. Electronic Signatures and Agreements
You acknowledge and agree that by clicking on the button labeled “SUBMIT”, “DOWNLOAD”, “I ACCEPT” or such similar links or methods as may be designated by 1905 to download the 1905 Software to accept the terms and conditions of this Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE 1905 SOFTWARE. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.
11. General Provisions
1905 reserves all rights not expressly granted herein. You may not assign this Agreement or any rights hereunder except to a wholly-owned subsidiary upon written notice to 1905. Nothing in this Agreement shall constitute a partnership or joint venture between you and 1905. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect. The failure of 1905 at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same unless the same is waived in writing. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of law rules. Any legal proceeding arising out or relating to this Agreement will be subject to the exclusive jurisdiction of the federal and state courts located in New York City, New York and both parties irrevocably consent to the jurisdiction of such courts. The terms set forth in this Agreement and any related service agreements constitute the final, complete and exclusive agreement with respect to the 1905 Software and may not be contradicted, explained or supplemented by evidence of any prior agreement, any contemporaneous oral agreement or any consistent additional terms. 1905 may at its sole discretion assign this Agreement to a subsidiary or sister company, without giving prior notice. YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CONTINUING TO INSTALL THE 1905 SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO 1905 THE RIGHTS SET FORTH HEREIN.