These license terms are an agreement (the “Agreement”) between Keyfactor and you.
By using the software (“SOFTWARE”) distributed with this Agreement, you accept these terms. If you do not accept them, do not use this SOFTWARE.
- LICENSE GRANT. Subject to the terms and conditions herein, KEYFACTOR hereby grants to you a non-exclusive and non-transferable license to use for personal or internal business purposes the object code version of the SOFTWARE, provided that any copy made must retain all of the original proprietary notices. KEYFACTOR also grants to you a non-exclusive license to use the related documentation, if any. You may not redistribute the SOFTWARE unless you have separately entered into a distribution agreement with KEYFACTOR nor may you copy the written materials accompanying the SOFTWARE. This Agreement does not entitle you to receive from KEYFACTOR technical support, telephone assistance, enhancements, or upgrades to the SOFTWARE.
- RESTRICTIONS. Except as otherwise expressly permitted in this Agreement, you may not: (a) modify or create derivative works of the SOFTWARE, including translation or localization; (b) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the SOFTWARE (except to the extent applicable laws specifically prohibit such restriction), (c) redistribute, sell, rent, lease, sublicense, grant a security interest in, or otherwise transfer rights to the SOFTWARE, or (d) remove any proprietary notices including but not limited to any trademark, logo, copyright or other labels in the SOFTWARE.
- U.S. GOVERNMENT LICENSEES. If you are part of a branch or agency of the United States Government (“Government”), the following provision applies. The SOFTWARE and documentation are comprised of “‘commercial computer software” and “commercial computer software documentation” as such terms are used in the Federal Acquisition Regulations System (FAR) at 48 C.F.R. 12.212 and are provided to the Government consistent with the restricted rights and policy set forth in 48 C.F.R. 12.212, or the Defense Federal Acquisition Regulation System, Department of Defense, consistent with the restricted rights and policies set forth in 48 C.F.R. 227.7202-1 and 48 C.F.R. 227.7202-3, as applicable. Use, duplication, and disclosure of the SOFTWARE and documentation is subject to the terms of this Agreement.
- NO WARRANTY. THIS SOFTWARE IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND. KEYFACTOR EXPRESSLY DISCLAIMS ANY WARRANTY (WHETHER EXPRESS, IMPLIED, AND/OR STATUTORY) WITH RESPECT TO THE SOFTWARE, AND THE SECURITY AND/OR INTEGRITY THEREOF, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
- LIMITATION OF LIABILITY. IN NO EVENT WILL KEYFACTOR’S CUMULATIVE LIABILITY HEREUNDER EXCEED THE AMOUNT OF THE LICENSE FEE PAID BY YOU TO KEYFACTOR. IN NO EVENT SHALL KEYFACTOR OR ITS SUPPLIERS BE LIABLE UNDER (A) ANY THEORY OR FOR ANY DAMAGES THAT STEM FROM USE OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY SORT, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF DATA AND LOSS OF INFORMATION, WHETHER ARISING OUT OF THE USE (OR INABILITY TO USE) THE SOFTWARE, TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF KEYFACTOR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- OWNERSHIP. You acknowledge that no title to the intellectual property in the SOFTWARE is transferred to you. You further acknowledge that all title, ownership rights, and intellectual property rights in and to the SOFTWARE shall remain in KEYFACTOR and/or its suppliers and you will not acquire any rights to the SOFTWARE except the license expressly set forth above. You agree to abide by the copyright law and all other applicable laws of the United States.
- EXPORT CONTROL. You agree to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the SOFTWARE or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals.
- TERMINATION. Without prejudice to any other rights, KEYFACTOR may terminate this Agreement and the license granted under this Agreement automatically if you fail to comply with the limitations of this Agreement. You may terminate this Agreement at any time. Upon termination of this Agreement you agree to destroy or erase the SOFTWARE from all applicable storage media. In the event of termination, this section and the following sections of this Agreement will survive: 2, 3, 4, 5, 6, and 9 through 14.
- APPLICABLE LAW.
(a) Governing Law. This Agreement shall in all respects be interpreted, construed and governed by and in accordance with the local laws of the State of Ohio, without regard to principles of conflict of laws.
(b) Exclusive Jurisdiction. The parties agree that any legal action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, shall be instituted in a federal or state court sitting in Cuyahoga County, Ohio, which shall be the exclusive jurisdiction and venue of said legal proceedings and each party hereto waives any objection which such party may now or hereafter have to the laying of venue of any such action, suit or proceeding, and irrevocably submits to the jurisdiction of any such court in any such action, suit or proceeding. Nothing contained herein shall be deemed to affect the right of any party hereto to serve process in any manner permitted by law.
- SEVERABILITY. If any provision or any portion of any provision of this Agreement is construed to be illegal, invalid or unenforceable, such provision or portion thereof shall be deemed stricken and deleted from this Agreement to the same extent and effect as if it were never incorporated herein, but all other provisions of this Agreement and the remaining portion of any provision that is construed to be illegal, invalid or unenforceable in part shall continue in full force and effect.
- NON-WAIVER. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. No waiver of any provision of this Agreement shall be valid unless in writing, signed by the waiving party, and only to the extent set forth in the writing.
- ASSIGNMENT. You shall not assign this Agreement, any interest herein or any rights hereunder without prior written consent of KEYFACTOR.
(a) By virtue of this Agreement, the parties may have access to information that is confidential or proprietary to one another (in each case, “Confidential Information”). Confidential Information shall be limited to the SOFTWARE, materials, procedures and methodologies related to the SOFTWARE, and all other information marked as confidential.
(b) Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure as evidenced by the receiving party’s pre-existing written records; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party. Results of benchmark tests run by you shall not be disclosed unless KEYFACTOR consents to such disclosure in writing.
(c) The parties agree not to make each other’s Confidential Information available in any form to any third party, excluding its immediate legal and financial consultants as required in the ordinary course of a party’s business, or to use each other’s Confidential Information for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement. Each party acknowledges that any breach of the provisions of this Section 13 may result in serious and irreparable injury to the non-breaching party for which the non-breaching party cannot be adequately compensated. Each party agrees, therefore, that, in addition to any other remedy that the non-breaching party may have, the non-breaching party shall be entitled to enforce the specific performance of this Section 13 by the breaching party and to seek both temporary and permanent injunctive relief without the necessity of proving actual damages or the posting of any bond, and money damages, including without limitation, all reasonable attorneys’ fees and costs incurred by the non-breaching party in enforcing this Agreement.
- ENTIRE AGREEMENT. Excepting modifications by a separate Software Licensing Agreement executed by KEYFACTOR and the company that employs you, this Agreement completely and exclusively states the agreement between you and KEYFACTOR regarding its subject matter. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between you and KEYFACTOR, oral or written, regarding such subject matter. This Agreement shall not be modified except by a subsequently dated written amendment signed by you and on behalf of KEYFACTOR by a duly authorized representative. Any document purporting to supplement or vary the provisions hereof shall be void.