END-USER LICENSE AGREEMENT FOR KEEPVAULT SOFTWARE
IMPORTANT—READ CAREFULLY: This End-User License Agreement ('EULA') is a legal agreement between either you personally, if you are using the software for yourself individually, or the company or other legal entity that you represent (“you”), and OkayPublish LLC doing business as KeepVault. (“KeepVault”) and it governs your use of the KeepVault software that accompanies this EULA ('Software'), which Software may only be used by you in connection with your access and use of Internet-based services provided to you by KeepVault, including, but not limited to, the KeepVault Service (the 'Services'). YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY EITHER FOLLOWING THE ONLINE ACCEPTANCE PROCESS PROVIDED BY KEEPVAULT OR BY INSTALLING, COPYING, ACCESSING OR USING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, DO NOT INSTALL, COPY, ACCESS OR USE THE SOFTWARE.
1. GRANT OF LICENSE. KeepVault grants you the following limited, non-transferrable, non-exclusive rights, provided that you pay all applicable fees and otherwise comply with all terms and conditions of this EULA and any terms of service applicable to the Services with which the Software is used:
1.1 Installation and use. You may: (a) install, access and use the Software on one or more personal computers or other devices; or (b) install the Software on a network storage device, such as a server computer, and allow one or more personal computers or other devices to access and use that copy of the Software over a private network; provided that, in the case of either (a) or (b), installation, access and use of the Software must be solely for your own authorized access and use the Services under an account established with KeepVault.
1.2 License Grant for Remote Assistance. You may access and use the Software using any device owned or operated by or on behalf of you for the sole purpose of providing you with technical support and maintenance services.
1.3 License Grant for Documentation. The documentation that accompanies the Software is licensed for your personal, internal, non-commercial reference purposes only.
2 SERVICES. The Software may only be used in connection with your authorized access and use of the Services associated with the Software (which may include, without limitation, the KeepVault services) under an account established with KeepVault and not for any other purpose. Your use of the Services associated with the Software is subject to terms of service applicable to such Services, which can be found at on the World Wide Web at http://www.keepvault.com or on such other Web site as KeepVault may designate from time to time. You may not use any Services associated with the Software in any manner that could damage, disable, overburden, or impair such Services or interfere with any other party's use and enjoyment of them. You may not attempt to gain unauthorized access to any service, account, computer systems or networks associated with the Services.
3. ACTIVATION; RESTRICTIVE MEASURES. You must activate the Software in the manner proscribed during the initial launch sequence. You may not be able to exercise your rights to the Software under this EULA after a finite number of product launches unless you activate your copy of the Software in the manner required. You may also need to reactivate the Software if you modify your computer hardware or alter the Software. KeepVault will not collect any personally identifiable information about you during this activation process. THERE ARE TECHNOLOGICAL MEASURES IN THIS SOFTWARE THAT ARE DESIGNED TO PREVENT UNLICENSED USE OF THE SOFTWARE. KeepVault will use those protective measures to confirm you have a legally licensed copy of the Software and you are not allowed to alter or disable these protective measures. If you are not using a licensed copy of the Software, you are not allowed to install the Software or future Software upgrades or updates.
4. RESERVATION OF RIGHTS AND OWNERSHIP. The Software is licensed and not sold and KeepVault reserves all rights not expressly granted to you in this EULA. The Software and related documentation are protected by copyright and other intellectual property laws and treaties (including the Berne Convention) and KeepVault or its suppliers own all right, title and interest in and to the Software and documentation, including all copyright and other intellectual property rights therein. This EULA does not grant you any rights in or to trademarks or service marks of KeepVault. No rights to distribute the Software or any documentation that accompanies the Software are granted in this EULA.
5. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile or disassemble the Software or in any way attempt to reconstruct or discover any source code or algorithms of the Software, except and only to the extent that, notwithstanding this limitation, such activity is expressly permitted by applicable law.
6. NO SUBLICENSE/RENTAL/COMMERCIAL HOSTING. You may not sublicense, rent, lease, lend or provide commercial hosting services with the Software. You may not use the Software for service bureau or other third party use.
7. COPIES. You may make copies of the Software (in object code form only) and the documentation, but only to the extent reasonably needed to exercise the rights granted to you in this EULA, including a reasonable number of copies for the purposes of security back-up, relocation or disaster recovery. Whenever you are permitted to copy or reproduce all or any part of the Software or the documentation that accompanies the Software, you must reproduce all titles, trademark symbols, copyright symbols and legends, and other proprietary markings thereon.
8. LINKS TO THIRD PARTY SITES. KeepVault is not responsible for the contents of any partner or third-party sites or services, any links contained in partner or third-party sites or services, or any changes or updates to partner or third-party sites or services. KeepVault is providing these links and access to partner or third-party sites and services to you only as a convenience, and the inclusion of any link or access does not imply an endorsement by KeepVault of the partner or third-party site or service.
9. SUPPORT SERVICES. Provided that you are current on all fees for the Services and in compliance with this EULA and the terms of service applicable to the Services, KeepVault will provide you with support services to the extent that it makes such support services generally available to its other customers using the Software and the associated Services. You agree that KeepVault and its affiliates may collect and use technical information gathered as part of the support services provided to you, if any, related to the Software. KeepVault may use this information solely to improve its products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you. KeepVault reserves the right to discontinue support services provided to you or made available to you.
10. ADDITIONAL SOFTWARE/SERVICES. This EULA applies to upgrades, updates, supplements, modifications, enhancements, add-on components, or Internet-based services components, of or to the Software that KeepVault may provide to you or make available to you after the date you obtain your initial copy of the Software, unless they are accompanied by separate terms.
11. UPGRADES. To use Software identified as an upgrade, you must first be licensed for the Software identified by KeepVault as eligible for the upgrade. After installing the upgrade, you may no longer use the original software that formed the basis for your upgrade eligibility, except as part of the upgraded software.
12. NOT FOR RESALE SOFTWARE. Software identified as 'Not for Resale' or 'NFR,' may not be sold or otherwise transferred for value, or used for any purpose other than demonstration, test or evaluation.
13. EXPORT RESTRICTIONS. You acknowledge that the Software is subject to United States and local country laws governing import, export distribution and use. You agree to comply with all United States and local country laws, rules and regulations that apply to the export or re-export of 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.
14. NO SEPARATION OF COMPONENTS. The Software is licensed as a single product. Its component parts may not be separated for use on more than one device.
15. NO SALE OR TRANSFER. You may not sell, transfer or assign the Software or this EULA to any third party.
16. TERMINATION. Without prejudice to any other rights, KeepVault may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, or in the event that you cease using the Services associated with the Software for any reason, you must destroy all copies of the Software and all of its component parts. KeepVault reserves the right to discontinue the Services provided to you or made available to you through the use of the Software.
17. LIMITED WARRANTY.
17.1 Limited Warranty. KeepVault warrants that the Software will perform substantially in accordance with the accompanying materials for a period of ninety (90) days from the date of receipt (“Limited Warranty”). If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any upgrades, updates, supplements, modifications, enhancements, add-on components to the Software, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the ninety day Limited Warranty period are provided “AS IS” and are not covered by any warranty or condition, express, implied or statutory.
17.2 LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by KeepVault, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Software does not meet KeepVault's Limited Warranty, even if any remedy fails of its essential purpose. The terms of Section 19 ('Exclusion of Incidental, Consequential and Certain Other Damages') are also incorporated into this Limited Warranty. This Limited Warranty gives you specific legal rights. You may have other rights which vary from jurisdiction to jurisdiction.
17.3 YOUR EXCLUSIVE REMEDY. KeepVault's and its suppliers' entire liability and your exclusive remedy for any breach of this Limited Warranty shall be, at KeepVault's option from time to time exercised (subject to applicable law), (a) return of the amount paid (if any) for the Software, or (b) repair or replacement of the Software. In each case these remedies are limited to the Software that does not meet this Limited Warranty. You will receive the remedy elected by KeepVault without charge, except that you are responsible for any expenses you may incur (e.g. the cost of shipping the Software to KeepVault). This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever time frame is longer, and KeepVault will use commercially reasonable efforts to provide your remedy within a commercially reasonable time of your compliance with KeepVault's warranty remedy procedures.
18. DISCLAIMER OF WARRANTIES. The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. EXCEPT FOR THE LIMITED WARRANTY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KEEPVAULT AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND SUPPORT SERVICES (IF ANY) “AS IS” AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY, ACCURACY, COMPLETENESS, WORKMANLIKE EFFORT, SATISFACTORY QUALITY AND NON-INFRINGEMENT, all with regard to the Software and the provision of or failure to provide support or other services, or otherwise arising out of the use of the Software. WITHOUT LIMITING THE FOREGOING, KEEPVAULT DOES NOT WARRANT OR REPRESENT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED, THAT IT IS FREE OF ERRORS OR FREE OF VIRUSES OR THAT KEEPVAULT WILL BE ABLE TO CORRECT ANY DEFECTS IN THE SOFTWARE.
19. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KEEPVAULT OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY, INCLUDING DUTIES OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THIS EULAM THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF KEEPVAULT OR ANY SUPPLIER, AND EVEN IF KEEPVAULT OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Some jurisdictions do not allow certain exclusions or limitations of liability so the above limitations or exclusions may not apply to you.
20. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the maximum cumulative liability of KeepVault and any of its suppliers for all claims arising from or relating to this EULA, whether in contract, tort (including negligence), strict liability or other legal or equitable theory, and your exclusive remedy hereunder (except for any remedy of repair or replacement elected by KeepVault with respect to any breach of the Limited Warranty) shall be limited to the greater of: (i) the amount actually paid by you (if any) for the Software; or (ii) US$5.00. The foregoing limitations, exclusions and disclaimers (including Sections 17, 18 and 19) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
21. APPLICABLE LAW; JURISDICTION; VENUE. This EULA and the licenses granted hereunder shall be governed by and construed in accordance with the laws of the State of Michigan, without giving effect to its conflicts of law provisions. If you acquired this Software in a country other than the United States, then local law may apply. The parties hereby submit to the personal jurisdiction of, and agree that any legal proceeding with respect to or arising under this EULA shall be brought solely in, the state courts of the State of Michigan for the County of Oakland or the United States District Courts located in the Eastern District of Michigan, if such court has subject matter jurisdiction. The parties agree that the UN Convention on Contracts for the International Sale of Goods or any other law that would otherwise apply shall not apply to this EULA or any dispute arising out of this EULA.
22. U.S. GOVERNMENT. The Software is deemed to be commercial computer software as defined in FAR 12.212 and subject to restricted rights as defined in FAR Section 52.227-19 'Commercial Computer Software – Restricted Rights' and DFARS 227.7202, “Rights in Commercial Computer Software or Commercial Computer Software Documentation”, as applicable, and any successor regulations. Any use, modification, reproduction release, performance, display or disclosure of the Software by the U.S. Government shall be solely in accordance with the terms of this EULA.
23. ENTIRE AGREEMENT; SEVERABILITY. This EULA (including any addendum or amendment to this EULA that is included with the Software or any upgrade or update) is the entire agreement between you and KeepVault relating to the Software and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. An amendment or addendum to this EULA may accompany the Software or any upgrade or update to the Software. To the extent the terms of any KeepVault policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
Should you have any questions concerning this EULA, or if you desire to contact KeepVault for any reason, please visit KeepVault on the World Wide Web at: http://www.keepvault.com.