RED DATA RECOVERY SOFTWARE LICENSE AGREEMENT
RED DATA RECOVERY Software License Agreement
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING THE RED SOFTWARE. BY USING THE RED SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, CLICK “DISAGREE/DECLINE”.
This agreement is made and entered into as of the electronic acceptance click (CLICK AGREE), by and between RED.COM, INC. dba RED Digital Cinema. (hereinafter “RED”), a Washington corporation with its principal place of business at 34 Parker, Irvine, CA, and the end customer (hereinafter “Customer”) after the electronic acceptance click.
A. GRANT. Subject to the terms of this Agreement, RED grants to the Customer a limited, non- exclusive, non-transferable license to install and use the RED Data Recovery Software (“Software” or “RED Software”) for the Customer’s business purposes only.
B. ADDITIONAL RESTRICTIONS ON USE. The Customer shall maintain a record of the number and locations of installed versions of the RED Software, and shall make those records available to RED upon reasonable request. The Customer shall not make the RED Software available in any form to any person other than the Customer’s employees, agents and contractors whose job performance requires access to the RED Software. The Customer shall take appropriate action to protect the confidentiality of the RED Software and ensure that any person permitted access to the RED Software understands that it must not be disclosed or used except as permitted by this Agreement.
C. DATA LIABILITY: Customer agrees that Customer shall have sole responsibility and assumes all risks relating to backing up and protecting all data used in connection with the Software and the impact it may cause on data. Customer agrees to comply with copyright laws and will not use this Software with copyrighted material, unless the Customer has permission from the copyright owner. Customer agrees to hold RED and its officers, directors and employees harmless from any liability for hardware damage, data recovery loss or data loss due to the Software, and accepts full and complete responsibility. Further, Customer agrees to indemnify and hold RED harmless from any and all claims, damages or costs incurred, including reasonable attorneys’ fees, arising from any action or claim brought by a third party relating to Customer’s recovery or use of third party’s data.
D. MODIFICATIONS; Reverse Engineering. The Customer agrees that, except as otherwise provided herein, only RED has the right to maintain, enhance or otherwise modify the RED Software. Customer will not reverse engineer the RED Software and will not permit any third party to reverse engineer the RED Software.
2. OWNERSHIP. RED or its licensors own and retain all proprietary rights, including all patent, copyright, trade secret, trademark and other intellectual property rights, in and to the RED Software and any corrections, bug fixes, enhancements, updates or other modifications to the RED Software, created by RED (or its licensors). Customer acknowledges that the License granted under this Agreement does not provide Customer with title to or ownership of the RED Software, but only a right of limited use under the terms and conditions of this Agreement. Customer shall not take any action that would subject the RED Software to claims, liens or encumbrances. RED is under no obligation to provide any support under this Agreement, including upgrades, corrections, bug fixes, or enhancements to DVS, end users, or any other party.
3. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.
A. DISCLAIMER OF WARRANTY. RED licenses the RED Software to Customer on an “AS IS” basis and without warranty of any kind. RED DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE RED SOFTWARE, RED MAKES NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO THE RED IP OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
B. LIMITATION OF LIABILITY. IN NO EVENT WILL RED BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER ARISING FROM THIS AGREEMENT AND/OR CUSTOMER’S USE OF THE RED SOFTWARE OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A RED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGE OR CLAIM, OR COST, OR FOR ANY CLAIM BY A THIRD PARTY.
RED’s AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO FIFTY U.S. DOLLARS ($50.00).
Nothing contained in this Agreement limits RED’s liability to Customer in the event of death or personal injury resulting from RED’s negligence or for the tort of deceit (fraud).
4. INDEMNIFICATION. Customer agrees to defend, indemnify, and hold RED harmless from and against any claims or lawsuits, including reasonable attorneys’ fees, that arise or result from the use of the RED Software, provided that RED gives Customer prompt written notice of any such claims, tenders to Customer the defense or settlement of such a claim at Customer’s expense, and reasonably cooperates with Customer, at Customer’s expense, in defending or settling such claim.
5. TERM AND TERMINATION.
A. TERM. This Agreement and the License granted hereunder shall continue in perpetuity unless terminated as set forth in this Section 5.
B. TERMINATION. Either party shall have the right to terminate this Agreement and the License granted herein in the event: (i) the other party fails to comply with any of the terms and conditions of this Agreement and such default has not been cured within thirty (30) days after written notice to the other party; (ii) the other party (A) terminates or suspends its business, (B) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, © becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (D) has closed or liquidated, voluntarily or otherwise, and such action or proceeding (as listed in (A) – (D)) has not been reversed or dismissed within sixty (60) days; or (iii) upon 60 day written notice by either party without cause
C. EFFECT OF TERMINATION. The obligations of RED and the Customer in Sections 1 (except for Section 1(a), 2, 3, 4, 5 and 6 shall survive termination of this Agreement. Within five (5) days after termination of this Agreement, the Customer shall return to RED or destroy, at Customer’s expense, the RED Software and Documentation, including all copies thereof (other than back-up copies made in the ordinary course of the Customer’s back- up procedures, which shall not be used in contravention of this Agreement), and deliver to RED a certification in writing and signed by an officer of the Customer that the RED Software and all copies thereof have been returned or destroyed. Nothing contained herein limits any other remedies that RED or the Customer may have for a default by the other party, nor relieve either party of any of its obligations incurred prior to such termination.
A. ASSIGNMENT. All the terms and provisions of this Agreement are binding for the benefit of the parties to this Agreement and to their respective heirs, successors, assigns and legal representatives. The Customer shall not, without RED’s prior written consent, assign or otherwise transfer the RED Software or this Agreement to anyone, including any third party, except as part of the sale of all or any portion of the Customer’s business pursuant to any merger, consolidation or reorganization. RED is entitled to assign this Agreement to a successor of all or substantially all of its relevant assets without restriction.
B. ENTIRE AGREEMENT. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters covered herein. This Agreement may only be amended by a written agreement signed by both parties. The Customer agrees that it has not entered into this Agreement based on any representations other than those contained herein.
C. DELAYS. Neither party shall be in default for a failure to fulfill its obligations under this Agreement due to a cause or causes beyond its reasonable control.
D. LAW GOVERNING AND JURISDICTION. This Agreement shall in all respects be governed by the laws of the State of California, without reference to its principles of conflicts of laws. Exclusive jurisdiction for any dispute arising from the terms and conditions of this Agreement shall be Orange County, California.
E. SEVERABILITY. If any of the provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted.
F. WAIVER. The waiver of one breach or default, or any delay in exercising any rights, shall not constitute a waiver of any subsequent breach or default.
G. NOTICES. All notices permitted or required under this Agreement shall be in writing and shall be delivered in person or mailed by first class, email, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing. Such notice is deemed to have been given upon receipt.
H. U.S. GOVERNMENT RESTRICTED RIGHTS. If this Software is being licensed by the U.S. Government, the RED Software and related documentation is commercial computer software and documentation developed exclusively at private expense; and (a) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
I. EXPORT LAW ASSURANCES. The Customer understands that the RED Software and Documentation are subject to export control laws and regulations.
CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE RED SOFTWARE, THE DOCUMENTATION, ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS. IN PARTICULAR, BUT WITHOUT LIMITATION, NONE OF THE RED SOFTWARE, THE DOCUMENTATION, ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (i) INTO (OR TO A NATIONAL OR RESIDENT OF) CUBA, IRAQ, LIBYA, NORTH KOREA, IRAN OR SYRIA; OR (ii) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S TABLE OF DENIAL ORDERS. THE CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT THE CUSTOMER IS NOT LOCATED IN, OR UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY, OR ON ANY SUCH LIST.
J. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.