END USER LICENSE AGREEMENT FOR NON-COMMERCIAL USE
THIS END USER LICENSE AGREEMENT FOR NON-COMMERCIAL USE (this “Agreement”) is a binding agreement between you and Pyrofex Corporation (“Company”). This Agreement governs your access to and use of the Cryptofex integrated development environment, including any and all upgrades, updates, modifications, revisions, as well as any and all explanatory written materials or files or documentation made available by Company (the “Software”). The Software is licensed, not sold. Any rights not clearly and expressly granted to you under this Agreement are reserved to Company.
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE “AGREE” BUTTON AND/OR DOWNLOADING AND/OR INSTALLING AND/OR ACCESSING AND/OR USING THE SOFTWARE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND FULLY UNDERSTAND THIS ENTIRE AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) UNCONDITIONALLY ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; PROVIDED, THAT IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” HEREIN REFERS TO SUCH ENTITY.
IF YOU DO NOT HAVE THE AUTHORITY OR IF YOU DO NOT AGREE TO THIS AGREEMENT IN ITS ENTIRETY, DO NOT DOWNLOAD OR INSTALL OR ACCESS OR USE THE SOFTWARE.
- LICENSE GRANT. Company hereby grants you a limited, non-exclusive, nontransferable, non-sublicensable license to download, install, access and use the Software without charge solely for your personal, non-commercial use on a single computing device owned or otherwise controlled by you (“Device”), in each case strictly in accordance with and subject to the terms and conditions of this Agreement and applicable law.
- LIMITATIONS AND RESTRICTIONS. You shall not under any circumstances: (a) copy the Software, except as expressly permitted by this license; (b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software; (c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (d) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software, including any copy thereof; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software or any features or functionality of the Software, to any third party for any reason, including by making the Software available on a network where it is capable of being accessed by more than one device at any time; or (f) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Software. THE SOFTWARE MAY CONTAIN AND COMPANY MAY ACTIVATE AND USE, WITHOUT ANY RESULTING OBLIGATION, LIABILITY, OR PENALTY TO YOU OR ANY THIRD PARTY, A DISABLING DEVICE OR ENCODED COMMANDS THAT WILL PREVENT THE SOFTWARE FROM BEING USED BY UNAUTHORIZED USERS AND FOR UNAUTHORIZED PURPOSES. YOU SHALL NOT TAMPER WITH THIS DISABLING DEVICE OR CODE.
- RESERVATION OF RIGHTS. You acknowledge and agree that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest whatsoever in the Software under this Agreement, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement and applicable law. Company and its licensors and service providers reserve and shall retain its/their entire right, title and interest in and to the Software, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
- NO TECHNICAL SUPPORT OBLIGATION. Company has no obligation under this Agreement to provide any maintenance, support or other services relating to the Software. You are solely responsible for taking appropriate measures to back up your Device and data and all other necessary measures to prevent any file or data loss.
- UPDATES. Company may from time to time in its sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. In the event Company provides any Updates, based on your Device settings, when your Device is connected to the internet either: (a) the Software will automatically download and install all available Updates; or you may receive notice of or be prompted to download and install available Updates. You agree to promptly download and install all Updates and acknowledge and agree that the Software or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Software and be subject to all terms and conditions of this Agreement and applicable law.
- TERM. The term of this Agreement commences upon the earlier of when you (a) click the “agree” button or otherwise acknowledge your acceptance of this Agreement, or (b) download, install, access, or use the Software, and in any event will continue in effect until terminated by you or Company as set forth below.
- TERMINATION. You may terminate this Agreement at any time by deleting the Software and all copies thereof from your Device. This Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement and/or applicable law. In addition, Company may terminate this Agreement at any time, for any reason or no reason, in its sole and absolute discretion, with or without notice, and without incurring any obligation, liability or penalty by reason of such termination. Upon termination of this Agreement (a) all rights granted to you under this Agreement will also terminate; and (b) you must cease all use of the Software and delete all copies of the Software from your Device and account. Termination shall not limit any of Company’s rights or remedies at law or in equity.
- THIRD PARTY MATERIALS. The Software may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions.
- DISCLAIMER OF WARRANTIES. THE SOFTWARE IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SOFTWARES, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- LIMITATIONS OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SOFTWARE OR THE CONTENT AND SERVICES FOR:
- PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES;
- DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO THE COMPANY FOR THE SOFTWARE.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH INSTANCES, COMPANY MAY BE LIABLE TO YOU (1) WITHOUT LIMITATION FOR DAMAGES YOU HAVE INCURRED UNDER OR IN CONNECTION WITH THIS AGREEMENT ONLY IF THE DAMAGE HAS BEEN CAUSED BY THE WILLFUL OR GROSSLY NEGLIGENT ACT OF COMPANY; AND (2) FOR THOSE TYPICAL DAMAGES THAT WERE REASONABLY FORESEEABLE AND WHICH HAVE BEEN CAUSED BY ANY OTHER NEGLIGENT BREACH OF AN ESSENTIAL CONTRACTUAL DUTY BY COMPANY. ANY FURTHER LIABILITY OF COMPANY IS EXCLUDED. THESE AFOREMENTIONED LIMITATIONS APPLY IRRESPECTIVE OF THEIR LEGAL BASIS, IN PARTICULAR WITH REGARD TO ANY PRE-CONTRACTUAL OR AUXILIARY CONTRACTUAL CLAIMS.
- NO LIABILITY FOR OPEN SOURCE MATERIALS. THE SOFTWARE MAY CONTAIN “OPEN SOURCE” MATERIALS (E.G., ANY SOFTWARE SUBJECT TO OPEN SOURCE, COPYLEFT, GNU GENERAL PUBLIC LICENSE, LIBRARY GENERAL PUBLIC LICENSE, LESSER GENERAL PUBLIC LICENSE, MOZILLA LICENSE, BERKELEY SOFTWARE DISTRIBUTION LICENSE, OPEN SOURCE INITIATIVE LICENSE, MIT, APACHE OR PUBLIC DOMAIN LICENSES, OR SIMILAR LICENSE). COMPANY MAKES NO WARRANTIES, AND SHALL HAVE NO LIABILITY, DIRECT OR INDIRECT, WHATSOEVER WITH RESPECT TO OPEN SOURCE MATERIALS CONTAINED IN THE SOFTWARE.
- INDEMNIFICATION. You agree to indemnify, defend and hold harmless Company and its affiliates and its/their directors, officers, employees, shareholders, agents, representatives, attorneys, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Software or your breach of this Agreement or applicable law. Furthermore, you agree that Company assumes no responsibility for the content you submit or make available through this Software.
- EXPORT REGULATION. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software available outside the US.
- US GOVERNMENT RIGHTS. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- GOVERNING LAW. This Agreement is governed by and construed in accordance with the internal laws of the State of Utah, USA, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Software shall be instituted exclusively in the federal courts of the United States embracing, or the courts of the State of Utah located in, Utah County in the State of Utah; provided, however, that this provision shall not restrict Company’s right to bring any suit, action or proceeding against you in the jurisdiction where you are located or any other relevant jurisdiction. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. This Agreement specifically excludes the United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such ‘Convention’, if otherwise applicable.
- LIMITATION OF TIME TO FILE CLAIMS. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- SEVERABILITY; HEADINGS. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable but only to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties, and all other provisions of this Agreement will continue in full force and effect. The headings in this Agreement are for convenience only and shall not limit or otherwise affect the meaning hereof.
- WAIVER. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
- SURVIVAL. The rights and obligations of the parties set forth in this Section 20 (Survival), Section 3 (Reservation of Rights), Section 10 (Disclaimer of Warranties), Section 11 (Limitations of Liability), Section 12 (No Liability for Open Source Materials), Section 13 (Indemnification), Section 16 (Governing Law), Section 17 (Limitation of Time to File Claim), Section 18 (Severability), Section 19 (Wavier), and Section 21 (Entire Agreement), and any right, obligation or required performance of the parties in this Agreement which by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.