This is a legal agreement between you (“Licensee”) and BlackFog, Inc. (“BlackFog”). By installing, downloading or using the software, Licensee represents and agrees that Licensee is authorized to consent to (and hereby agrees to) the terms of this agreement.
Terms and Conditions of Software License
1. GRANT OF LICENSE; USE RESTRICTIONS. This End User License Agreement (“Agreement”) permits Licensee to download and use the Software provided that Licensee has acquired a license for each computer. Licensee agrees that it shall not modify, translate, reverse compile, decrypt, extract, disassemble, or otherwise reverse engineer any portion of the Software. Licensee’s outsourcing vendors (“Outsourcing Vendors”) and consultants (“Consultants”) have the right to access and use the Software on behalf of Licensee as long as they are bound by this agreement.
2. COPY RESTRICTIONS. Licensee may make copies (full or partial) for backup or archival purposes to support the right to use licensed herein. Licensee agrees that all copies of the Software shall be owned by BlackFog, shall be considered Software subject to this Agreement, and shall include the same proprietary and copyright notices and legends as supplied by BlackFog and its licensors.
3. OWNERSHIP OF SOFTWARE. BlackFog retains all right, title, and interest in the Software. Licensee agrees that no title to the Software, or the intellectual property in any of the Software, or in any Software copy, is transferred to Licensee. This license is not a sale of the original Software or any copy thereof.
4. TRANSFER RESTRICTIONS. Licensee may transfer the Software and all licenses and rights in Software granted under this Agreement, provided that all Software copies are also transferred or destroyed and provided that the transferee agrees to accept the terms and conditions of this Agreement. Licensee’s license will automatically terminate upon any transfer of the Software.
Except as provided above, or with BlackFog’s prior written consent, neither this Agreement nor any rights or obligations under this Agreement, in whole or in part, shall be sublicensed, assigned or otherwise transferred and any attempt to sublicense, assign or transfer this Agreement or any rights or obligation under this Agreement shall be null and void (except as aforesaid).
5. TERM & TERMINATION. This Agreement becomes effective on the date Licensee legally acquires the Software and will automatically terminate if Licensee breaches any of its terms. If the Software is provided to Licensee on a subscription basis, then Licensee’s right to possess or use the Software will terminate at the end of the applicable subscription period. Upon termination of this Agreement or any applicable subscription period, Licensee must destroy the original and all copies of the Software and delete the Software from Licensee’s systems.
6. GOVERNING LAW; DISPUTES. This Agreement shall be governed by and interpreted in accordance with the State of Wyoming, excluding its choice of law rules. The parties hereby agree that any dispute regarding the interpretation or validity of, or otherwise arising out of, this Agreement, or relating to the products licensed hereunder shall be subject to the exclusive jurisdiction of the Wyoming state courts (or, if there is federal jurisdiction, one of the United States District Courts for the State of Wyoming), and the parties agree to submit to the personal and exclusive jurisdiction and the venue of these courts.
7. INTEGRATION. This Agreement is the entire agreement between Licensee and BlackFog relating to Software and: (i) supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to its subject matter; and (ii) prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communication between the parties during the term of this Agreement. No modification to the Agreement will be binding, unless in writing and signed by a duly authorized representative of each party.
8. SEVERABILITY. If any provision of this contract is found, by a court of competent jurisdiction, to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision and all other provisions shall remain in effect.
9. LIMITED WARRANTY AND DISCLAIMER OF WARRANTY; BlackFog warrants that it has the authority and right and has obtained all intellectual property rights necessary to license the Software pursuant to the terms of this Agreement. BlackFog also warrants that the Software will substantially conform to the documentation provided to Licensee. BlackFog’s entire liability under this warranty shall be, at BlackFog’s option, to either (a) refund the price paid for the Software, or (b) repair and replace the full Software. BlackFog’s warranty and obligation shall extend for thirty (30) days after initial installation of the Software by Licensee (“Warranty Period”), and is solely for the benefit of Licensee, who has no authority to assign or pass through this warranty to any other person or entity. This warranty shall not apply if Software is used other than in accordance with BlackFog’s written instructions, or if any of Licensee’s hardware equipment associated with the use of Software malfunctions and such malfunction causes the warranty breach.
Except as provided in this Section, BlackFog makes no other warranty of any kind, express or implied, with regard to the Software licensed hereunder. BlackFog does not warrant or represent that the Software will operate uninterrupted or error free.
10. WAIVER AND MODIFICATION. Any waiver or modification to this License will not be effective unless executed in writing and signed by an authorized representative of BlackFog.
11. U.S. EXPORT RESTRICTIONS AND GOVERNMENT RESTRICTED RIGHTS LEGEND. You may not export or re-export the Software or any copy or adaptation in violation of any applicable laws or regulations. Licensee agrees that Licensee does not intend to, and will not, without the prior written approval, if required, of the Office of Export Administration of the U.S. Department of Commerce, Washington, D.C. 20230, transmit either directly or indirectly, any portion of the Software to any country for which such approval is required.
The Software and Documentation have been developed entirely at private expense. Use, duplication or disclosure of the Software by the Government is subject to restrictions as set forth in FAR 52.227-19(c) or subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 52.227-7013 and/or in similar or successor clauses in the FAR, or the DOD or NASA FAR supplement. Unpublished rights are reserved under the Copyright Laws of the United States.