SolPass End User License Agreement
THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) IS BETWEEN SOLPASS ENTERPRISE LLC (“SOLPASS”) AND THE CUSTOMER PURCHASING SOLPASS HARDWARE PRODUCTS AND SOFTWARE LICENSES (“CUSTOMER”). SOLPASS IS WILLING TO LICENSE THE SOFTWARE AND FIRMWARE PROVIDED WITH THIS AGREEMENT OR PRE-INSTALLED ON SOLPASS HARDWARE PRODUCTS PURCHASED BY CUSTOMER (COLLECTIVELY, THE “SOFTWARE”) TO CUSTOMER ONLY ON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, SOLPASS IS UNWILLING TO LICENSE THE SOFTWARE TO CUSTOMER, AND CUSTOMER SHOULD RETURN THEUNUSED SOFTWARE AND SOLPASS HARDWARE PRODUCTS TO THE PARTY FROM WHOM CUSTOMER PURCHASED SUCH ITEMS (THE “PROVIDER”). BY USING SOLPASS PRODUCTS AND SOFTWARE, CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
Purchases, Payment and Support
Purchases of SolPass products shall be made through and delivered by the Provider in accordance with the Provider purchase order for such products (the “Purchase Order”). Customer shall make all payments for SolPass products, services and Software in accordance with the terms of the Purchase Order. Support services shall be provided to Customer in accordance with the Purchase Order.
1. Software License
The Software is licensed to Customer to be used only in the permitted territory or territories identified in the Purchase Order (“Permitted Territory”). Subject to the terms and conditions of this Agreement, including payment of applicable license fees and royalties, SolPass hereby grants to Customer a non-transferable, non-exclusive, non-sublicenseable, limited right within the Permitted Territory to use the Software for internal purposes only. Customer’s authorized employees, contractors, and/or third party suppliers or service providers (who are not competitors of SolPass) may use the Software for Customer’s internal purposes only, provided that Customer has paid for the applicable number of licenses and necessary SolPass hardware. Other than with respect to the Public Software (defined in Section 5 below), no license is granted to Customer for the human readable, or source code of the Software. Customer receives no title or ownership rights to the Software. Except for the license granted in this Section, all right, title and interest in the Software and any derivative works in whole or in part of any Software shall remain the exclusive property of SolPass or its licensors. SolPass reserves all rights not expressly granted to Customer.
2. Restrictions on Use
Except as permitted in Section 2, Customer shall not use, copy, sell, assign, transfer, pledge, distribute, lease, loan, rent, sublicense, transmit, duplicate or otherwise reproduce the Software, or use the Software in a time-sharing arrangement or in any other unauthorized manner, nor permit any other party to do any of the foregoing. Customer shall not remove, alter or obscure any proprietary rights notice, trademarks, trade names, logos, or markings provided on the Software or other SolPass products, or add any other notices or markings to the Software or SolPass products. Customer shall not decompile, reverse engineer, disassemble, modify, or create derivative works (as defined by the U.S. Copyright Act) or improvements from the Software or any portion thereof, or otherwise attempt to gain access to any underlying code used to implement or deploy the Software or other SolPass products, nor permit any other party to do any of the foregoing. However, if Customer is located in a Member State of the European Community or in any other jurisdiction where applicable law is analogous to the EC Software Directive and need information about the Software in order to achieve interoperability of an independently created software program with the Software, Customer shall first request such information from SolPass. Unless SolPass refuses to make such information available, Customer shall not take any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to the Software. SolPass may charge a reasonable fee for the provision of such information. In the event that SolPass does not provide such information, then Customer’s right to reverse engineer shall be limited to the extent required by the EC Software Directive or other applicable law.
3. Public Software and Third Party Software
Customer understands that the Software contains or is distributed with certain computer programs that are licensed by third parties, some of which is publicly available (collectively, the “Public Software and Third Party Software”). The Public Software and Third Party Software is listed in Exhibit A and Customer shall comply with all terms and conditions under which such Public Software and Third Party Software is licensed. For purposes of this Agreement, the Software shall be interpreted to include Public Software and Third Party Software.
To the extent Customer or its employees, agents, or contractors provide SolPass with any suggestions, ideas, enhancement requests, recommendations, or feedback regarding any Software or other SolPass product (collectively, “Feedback”), SolPass will be free to use and disclose such Feedback without any restriction.
The term of this Agreement (“Term”) shall be as set forth in the Purchase Order.
6. Termination of Agreement
This Agreement may be terminated, prior to the expiration of the Term, by either party effective immediately upon written notice if: (a) the other party materially breaches any representation, warranty, covenant, condition, or other obligation in this Agreement which remains uncured 30 days after written notice of such breach is given by the aggrieved party to the breaching party; or (b) if: (i) a voluntary petition in bankruptcy shall be filed by the other party, or (ii) an involuntary petition in bankruptcy or petition alleging insolvency or inability to pay debts when due in the ordinary course of business shall be filed against the other party and not be dismissed within 30 days, or (iii) a receiver shall be appointed for the assets of the other party and not be dismissed within 30 days, or (iv) the party shall make an assignment for the benefit of creditors, shall become insolvent, or shall be unable to pay its debts when due in the ordinary course of business. Customer may terminate this Agreement prior to the expiration of the Term by discontinuing use of all or any of the Software and by destroying all of Customer’s copies of the Software. There will be no refund of any license fees, royalties or other payments upon early termination of the Agreement by you or by SolPass, or as permitted under this Agreement.
7. Limited Warranty and Disclaimer
SOLPASS WARRANTS THAT (A) THE SOFTWARE WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH SOLPASS SPECIFICATIONS, (B) SOLPASS WILL USE COMMERCIALLY REASONABLE EFFORTS NOT TO INTRODUCE ANY VIRUS, ROGUE PROGRAM, WORM, TROJAN HORSE OR OTHER MALICIOUS OR INTENTIONALLY DESTRUCTIVE CODE INTO THE SOFTWARE, AND (C) SOLPASS HAS ALL RIGHTS AND LICENSES NECESSARY TO CONVEY TO CUSTOMER THE RIGHTS GRANTED HEREUNDER. CUSTOMER’S EXCLUSIVE REMEDY AND SOLPASS’ ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY DURING THE TERM OF THIS AGREEMENT WILL BE FOR THE PROVIDER TO REPAIR OR REPLACE THE DEFECTIVE SOFTWARE. EXCEPT AS SET FORTH HEREIN, THE SOFTWARE IS PROVIDED “AS IS” AND WITH ALL FAULTS. SOLPASS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, FOR THE SOFTWARE OR ANY PORTION THEREOF, INCLUDING, WITHOUT LIMITATION, OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER FURTHER UNDERSTANDS AND AGREES THAT ANY MATERIAL OR DATA STORED ON CUSTOMER’S COMPUTER SYSTEM THROUGH USE OF THE SOFTWARE WILL BE ENCRYPTED AND THAT CUSTOMER WILL NOT BE ABLE TO RETRIEVE SUCH MATERIAL OR DATA WITHOUT THE APPLICABLE SOLPASS HARDWARE PROVIDED TO CUSTOMER. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OR EXCLUSIONS OF WARRANTIES IN SOME CIRCUMSTANCES. ACCORDINGLY, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO CUSTOMER.
8. Limitation on Liability
SOLPASS AND ITS SUPPLIERS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, OR DATA (EVEN IF SOLPASS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES), ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SOFTWARE. IN NO EVENT WILL THE AGGREGATE AMOUNT OF SOLPASS’ DAMAGES TO CUSTOMER EXCEED (COLLECTIVELY) THE AMOUNT OF ANY PAYMENTS RECEIVED BY SOLPASS WITH RESPECT TO CUSTOMER’S USE OF THE SOFTWARE, IF ANY, WITHIN TWELVE (12) MONTHS PRIOR TO THE DATE ANY SUCH LIABILITY IS INCURRED, WHICHEVER IS GREATER. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OR EXCLUSIONS OF LIABILITY IN SOME CIRCUMSTANCES. ACCORDINGLY, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO CUSTOMER.
9. Indemnification by Customer
Customer will indemnify, defend, and hold harmless SolPass and its affiliates and suppliers and their officers, directors, employees, and agents (“Indemnified Entities”) from and against all damages, liabilities, expenses, and fees (including any regulatory fine or penalty) arising out of or in connection with any third party claim or suit asserted against the Indemnified Entities based on: (i) Customer’s use or misuse of the Software or other SolPass products; or (ii) any content, files, documents, information or other data, received, processed, or transmitted by Customer using the Software; provided, however, that: (a) Customer is promptly notified in writing of such claim or suit, (b) Customer shall have the sole control of the defense and/or settlement thereof, and (c) the Indemnified Entity furnishes to Customer, on request, all relevant information available to the Indemnified Entity and, at the request and expense of Customer, reasonably cooperates in such defense.
(a) This Agreement constitutes the entire understanding between the parties respecting use of the Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Agreement will be binding unless it is in writing signed by an authorized SolPass representative. No waiver by SolPass of any breach of this Agreement by Customer shall operate as a waiver of any other breach. (b) Neither party may assign this Agreement or any rights or obligations under this Agreement without the prior written consent of the other party, except that no consent shall be required for an assignment to an affiliate or an assignment made in connection with the sale of all or substantially all of the party’s business related to this Agreement, whether by sale of assets, sale of stock, merger or otherwise. Any attempted assignment in violation of the foregoing is null and void. This Agreement will be binding upon and inure to the benefit of any permitted assigns and successors. (c) Except with respect to any separate licenses governing the use of Public Software and Third Party Software, the terms of this Agreement shall be construed and governed exclusively by the laws of Delaware, excluding the application of its conflict of law provisions and rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. (d) Customer shall not use the Software in any unlawful manner, for any unlawful purpose or in any manner inconsistent with this Agreement. This Software is subject to the export control laws of the United States and Customer agrees not to export or re-export the Software without the appropriate United States and foreign government licenses. (e) If the Software is supplied to or purchased by or on behalf of the United States Government, then the Software is deemed to be a Commercial Item, as that term is defined in 48 C.F.R. -2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation, as such terms are used in 48 C.F.R. -12.212 or 48 C.F.R. -227.7202, as applicable. Consistent with 48 C.F.R. -12.212 or 48 C.F.R. -227.7202-1 through 227.7202-4, as applicable, such Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions set forth in this Agreement. (f) The SolPass products and software identified in Appendix A are protected by one or more patents listed at: <https://www.sol-pass.com/patents>. This list is provided in compliance with the virtual patent marking provisions of 35 U.S.C. § 287. (g) The SolPass trademarks and service marks and other SolPass logos and Software and service names are trademarks of SolPass LLC (collectively, the “SolPass Marks”). Without SolPass’ prior permission, Customer may not display or use in any manner any SolPass Mark. (h) If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable for any reason, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision to the extent possible, and the other provisions of this Agreement remain in full force and effect. (i) Customer agrees that any actual or threatened misuse or misappropriation of the Software or the infringement of any intellectual property or other proprietary rights of SolPass or its suppliers stemming from Customer’s use of the Software would cause irreparable injury to SolPass and its suppliers for which no adequate remedy at law exists; therefore, Customer agrees that in addition to all other remedies available to SolPass, equitable remedies, including without limitation injunctive relief and specific performance, without the requirement of posting a bond (where applicable), are appropriate remedies to redress any of the foregoing. SolPass shall recover any out-of-pocket expenses incurred in seeking and enforcing any equitable remedies, including, without limitation, any legal expenses, including court costs and attorney’s fees.