AlertSite Magento Subscription Agreement
END USER LICENSE AND USE AGREEMENT
This End User License and Use Agreement (this "Agreement") is by and between SmartBear Software Inc., a Delaware corporation ("SmartBear") and you. The DéjàClick™ software, the AlertSite Magento Extension and any other software, data, services, documentation, scripts, or local computer files included within, accessed or otherwise obtained or made available in conjunction with or through this package, including without limitation SmartBear's free version of the AlertSite monitoring service (the "AlertSite Service") and any upgrades, enhancements, modifications, updates, revisions, and substitutions thereto are collectively referred to as the "Software". YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE SOFTWARE AND DO NOT USE THE ALERTSITE SERVICE.
1. Grant and Term of License.
SmartBear grants you a personal, non-exclusive, non-transferable, royalty-free, and revocable right to install and use the Software and to use the AlertSite Service based upon the terms and conditions set forth in this Agreement. The Software may be installed on any computers or network servers under your control for your own use. This license shall continue in effect until otherwise terminated by SmartBear or immediately upon any failure by you to comply with the provisions set forth in this Agreement.
2. Ownership; Intellectual Property.
(i) The Software and the AlertSite Service are the property of SmartBear and protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. SmartBear and its licensors own all rights, title, and interest in and to the Software and AlertSite Service, portions thereof and all subsequent copies thereof regardless of the form or media, and of the software and services provided through or in conjunction with the Software and the AlertSite Service, including without limitation all Intellectual Property Rights. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
(ii) This Agreement grants you no right, title, or interest in any intellectual property owned or licensed by SmartBear, including (but not limited to) the Software, the AlertSite Service and SmartBear's trademarks, and creates no direct relationship between you and SmartBear other than that of licensor to licensee under this Agreement. You agree to abide by all applicable laws, as well as any additional copyright notices or restrictions contained in this Agreement and in the Software and the AlertSite Service.
(iii) You grant SmartBear permission to use and incorporate into the Software and the AlertSite Service your ideas or comments without further compensation. All rights to patents, copyrights, trademarks and trade secrets in the Software or any modifications to it shall be and remain with SmartBear. All rights not expressly granted pursuant to this Agreement are reserved by SmartBear.
(i) Except as otherwise expressly provided by this Agreement, the Software may not be copied, reproduced, translated or reduced to any electronic medium or machine-readable form.
(ii) The Software and the AlertSite Service are made available to you for your use only. You may use each at work or at home, but you may not sell, lease, loan, or sublicense, or exploit the AlertSite Service or Software or any use or provision of the Software (or access thereto) or any of its parts or any information or services associated with or derived from the Software as a service bureau, as an application service provider, to perform consulting or training services for a third party or in any time share arrangement, whether for direct commercial or monetary gain or otherwise.
(iii) You may not use, disclose, modify, reproduce or distribute the Software or the AlertSite Service except as expressly permitted in this Agreement.
(iv) Except to the extent that restrictions on these activities may be prohibited under applicable law, you may not modify, alter, adapt, translate, reverse engineer, decompile, disassemble or create derivative works based on the Software the AlertSite Service or any portion thereof, or otherwise attempt to derive source code from the Software .
(v) You may not alter, remove, efface or otherwise obscure any copyright notices, trademarks, or other proprietary rights or notices, labels, or marks affixed to or contained within or accessed in conjunction with or through the Software or the AlertSite Service.
(vi) You may not redirect, emulate, or alter the network communication links, URLs or protocols used by the Software for communicating with SmartBear's monitoring services for any purpose or by any techniques now known or hereafter developed.
(vii) You may not use the Software in any manner that could damage, disable, overburden, or impair SmartBear's monitoring services, including the AlertSite Service.
(viii) You may not use the Software or the AlertSite Service in any manner that could interfere with any other party's use of the Software or the AlertSite Service.
(ix) You may not use any feature of the Software relating to the for fee AlertSite and other monitoring services offered by SmartBear or its partners in any manner inconsistent with the AlertSite Subscription Agreement located at https://www.alertsite.com/order_terms_agreement.shtml or the Order Form referenced therein. SmartBear may amend or revise SmartBear's Subscription Agreement at any time and you agree to be bound thereby.
(x) You may not use the Software or the AlertSite Service in connection with the operation of nuclear facilities, life support, or other mission critical application where human life or property may be at stake. You acknowledge that neither the Software nor the AlertSite Service are designed for such purposes and that its failure in such cases could lead to death, personal injury, or severe property or environmental damage for which SmartBear is not responsible.
(xi) Use of the Software or the AlertSite Service by or on behalf of the United States Government constitutes acknowledgement that the Software is deemed to be "commercial software" as that term is used in the Federal Acquisition Regulation system. Rights of the United States shall not exceed the minimum rights set forth in FAR 52.227-19 for "restricted computer software." All other terms and conditions of this Agreement apply.
(xii) You may not use or export the Software, directly or indirectly, in violation of applicable U.S. laws or regulations or in any unlawful manner, or for any unlawful purpose.
4. Support and Services.
SmartBear may elect to provide you with support and/or software upgrades, enhancements, or modifications (collectively, "Support") for the Software or the AlertSite Service, in its sole discretion, and may terminate such Support at any time without notice to you. SmartBear may change, suspend, or discontinue any aspect of the Software or the AlertSite Service or any other related services at any time, including the availability of any Software feature, database, or content. SmartBear may also impose limits on certain features and services or restrict your access to parts or all of the Software, the AlertSite Service or other services without notice or liability.
5. Disclaimer of Warranties.
THE SOFTWARE AND THE ALERTSITE SERVICE AND ANY RELATED DATA OR OTHER SERVICES ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. SMARTBEAR EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO AND WITHOUT LIMITATION, THE SECURITY, RELIABILITY, TIMELINESS, PERFORMANCE, ACCURACY, COMPLETENESS, OR ADEQUACY OF THE SOFTWARE, THE ALERTSITE SERVICE OR ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, QUIET PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SMARTBEAR MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE OR THE ALERTSITE SERVICE, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS. SMARTBEAR DOES NOT REPRESENT THAT THE SOFTWARE, THE ALERTSITE SERVICE OR ANY DATA ACCESSED THEREFROM IS APPROPRIATE OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SOFTWARE AND THE ALERTSITE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SOFTWARE, THE ALERTSITE SERVICE AND ANY RELATED DATA OR SERVICE. THE ENTIRE RISK AS TO THE QUALITY, USE AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. SMARTBEAR MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE SOFTWARE OR THE ALERTSITE SERVICE IS FREE OF INFECTION FROM ANY VIRUSES, WORMS, TROJAN HORSES, TRAP DOORS, BACK DOORS, EASTER EGGS, TIME BOMBS, CANCELBOTS OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
6. Limitation of Liability.
SMARTBEAR SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY LOSS OR DAMAGE (INCLUDING LOSS OR DAMAGE INCURRED FROM THIRD PARTIES), ARISING OUT OF OR RELATED TO THE SOFTWARE, THE ALERTSITE SERVICE OR ANY DATA ACCESSED THROUGH THE SOFTWARE OR THE ALERTSITE SERVICE. INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES, DAMAGES FOR ANY LOSS OF PROFIT OR REVENUE, INJURY TO PERSON OR PROPERTY, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OR PERSONAL INFORMATION, EVEN IF SMARTBEAR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES, SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
You shall defend, indemnify and hold harmless SmartBear and its officers, directors, shareholders, employees, independent contractors, agents, representatives and affiliates from and against all claims and expenses, including, but not limited to, attorneys' fees and costs, made by any third party arising out of, or attributable to (i) your breach or violation this Agreement, (ii) your access or use of the Software or the AlertSite Service, and/or (iii) your violation of applicable laws or your violation of any rights of another person or entity. Your indemnification obligations shall survive the termination of the license provided by this Agreement.
8. Severability; No General Waiver.
If any provision of this Agreement is contrary to, prohibited by or deemed invalid under applicable law or regulation, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder of this Agreement shall not be invalidated thereby and shall be given full force and effect so far as possible. If any provision of this Agreement may be construed in two or more ways, one of which would render the provision invalid or otherwise voidable or unenforceable and another of which would render the provision valid and enforceable, such provision shall have the meaning which renders it valid and enforceable. The failure of SmartBear to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
9. SmartBear's Remedies.
SmartBear may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, SmartBear shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement.
10. Governing Law; Jurisdiction; Arbitration.
This Agreement is to be governed and construed in accordance with the internal laws of the Commonwealth of Massachusetts, without regard for principles of conflicts of laws. Any civil action, claim, dispute or proceeding arising out of or relating to this Agreement, except for an injunctive action regarding a breach or threatened breach of any provision of this Agreement by you, shall be referred to final and binding arbitration, before a single arbitrator, under the commercial arbitration rules of the American Arbitration Association in Suffolk County, Massachusetts. The arbitrator shall be selected by you and SmartBear, and if you and SmartBear are unable to reach agreement on selection of the arbitrator within thirty (30) days after the notice of arbitration is served, then the arbitrator shall be selected by the American Arbitration Association. Judgment upon any award rendered by the arbitrator shall be final, binding and conclusive upon you and SmartBear and your and SmartBear's respective administrators, executors, legal representatives, successors and assigns, and may be entered in any court of competent jurisdiction.
The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of this Agreement, and shall not limit or otherwise affect in any way the meaning or interpretation of this Agreement.
12. Export Restrictions.
You acknowledge that each item of Software is a SOFTWARE PRODUCT of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
13. Entire Agreement.
This Agreement represents the entire understanding and agreement between you and SmartBear with respect to its subject matter, and supersedes all other negotiations, understandings and representations (if any), made by and between you and SmartBear. Any waiver of any provision of this Agreement will be effective only if in writing and signed by SmartBear. Furthermore, some of the features of the Software are designed to be used in conjunction with the for fee AlertSite and other monitoring services offered by SmartBear or its partners. Accordingly, your use of the Software in conjunction with the for fee AlertSite and other monitoring services offered by SmartBear or its partners are also subject to the AlertSite Subscription Agreement located at https://www.alertsite.com/order_terms_agreement.shtml and the Order Form referenced therein. In the event of any conflict between the terms and conditions of this Agreement and those in such Subscription Agreement, the terms and conditions of this Agreement will control such conflict, except to the extent that such Subscription Agreement may impose additional restrictions and liabilities on your actions.