1. By ordering the SIGBOX Service, Customer acknowledges that Customer has read, understands and agrees to be bound by the terms of this SIGBOX EULA.
2. Grant and Scope of License
2.1 In consideration of the terms set out in this SIGBOX EULA, Contractor grants Customer a non-exclusive, non-transferable, revocable license (“License”) to install and use the Software during the license term set out in clause 4 (“License Term”) in accordance with (a) the terms of this SIGBOX EULA; (b) the Head Agreement; and (c) any other applicable limitation set out in the order.
2.2 Under the License granted, Customer may permit third party agents to access, use and/or operate the Software on Customer’s behalf for the sole purpose of delivering services to Customer, provided that Customer will be fully responsible for the third party agents’ compliance with the terms and conditions of this SIGBOX EULA and any breach of this SIGBOX EULA by a third party agent shall be deemed to be a breach by Customer.
2.3 Customer may make one copy of the Software in machine-readable form solely for backup purposes. Customer must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software. Customer may not sell or transfer any copy of the Software made for backup purposes.
2.4 The Software contains proprietary and confidential information of Contractor and its licensors, including copyrights which are protected by international copyright laws, inventions which are protected by patents (or patents pending in Australia), trade secrets and trademarks contained in the Software. Title to and ownership of the Software, including without limitation all Intellectual Property Rights in and to the Software, are and shall remain the exclusive property of Contractor and its licensors, and except for the limited license granted to Customer by Contractor, Contractor reserves all right, title and interest in and to the Software. Customer shall not take any action to jeopardize, limit or interfere with Contractor and its licensors’ ownership of and rights with respect to the Software. Customer acknowledges that any unauthorized copying or unauthorized use of the Software is a violation of this Agreement and is strictly prohibited. Any bug reports, usability reports, test results, feedback made by Customer, or any other data transmitted to or from the Software shall be the sole property of Contractor and its licensors and may be used by Contractor and its licensors for any purpose.
2.5 Contractor may collect and use technical and related information from Customer’s computer system to facilitate any updates or product support or to improve the Software and to check compliance with this SIGBOX EULA.
2.6 Contractor licenses the Software by way of User Licenses for use on Customer’s servers and/or user level devices such as personal computers, tablets, and smartphones. Contractor licenses the SIGBOX Service to specified end users based on a unique E-mail ID that provides the user identified by the unique E-mail ID access to the SIGBOX Service. If Customer has multiple Licenses for the SIGBOX Service, Customer may use as many copies of the Software for as many unique E-mail IDs as Customer has Licenses. For purposes of this SIGBOX EULA, “use” of the Software means loading the Software into the temporary or permanent memory of a computer or mobile device. Installation of the Software on a network server solely for distribution to specific end users is not “use” of the Software, and is permitted, as long as Customer has a license for each unique E-mail ID to which the Software is distributed. The Software may not be used on or distributed to a greater number of end users than Customer has Licenses and may only be distributed to end users with unique E-mail IDs listed on the applicable Order. For clarity, an Email ID may only be assigned to a single end user, and such License shall only give that individual a right to use the Software hereunder. Notwithstanding the foregoing, an end user may place the Software on multiple devices simultaneously, provided such end user is the only user of such Software under this SIGBOX EULA on all such devices.
3.1 All rights not expressly granted to Customer under this SIGBOX EULA are reserved. Without limiting the foregoing, Customer must not, directly or indirectly:
(a) Subject to any statutory rights Customer may have, modify, adapt, reverse disassemble, decompile or reverse engineer the whole or any part of the Software or otherwise attempt or allow any other party to attempt to discover the source code of the Software or to obtain the algorithms by which the Software performs its functions;
(b) In connection with the Software, use, share, upload, create or deal in any way with material that contains “viruses”, “trojan horses”, “copybots”, “worms”, spyware, “time bombs”, “cancelbots” or any other computer programs or codes that are intended to damage, interrupt, destroy, detrimentally interfere with or limit the functioning of the Software data and other information used in connection with the Software or any Maintenance;
(c) Sublicense, rent, lease, re-sell or lend any portion of the Software save as provided under this SIGBOX EULA unless Customer obtains a separate license from Contractor for such purposes. For example, Customer may not embed the Software into another application and then distribute such to third parties unless Customer first acquires an appropriate license from Contractor;
(d) Use the Software in or in association with safety critical applications where the failure of the Software to perform can reasonably be expected to result in a significant physical injury, or in loss of property, or loss of life. Any such use is entirely at Customer’s own risk, and Customer agrees to hold Contractor harmless from any and all claims or losses relating to such unauthorized use;
(e) Remove any proprietary notices from any copy of the Software;
(f) Make any false, misleading or deceptive statement or representation regarding Contractor and/or the Software;
(g) Use the Software for the benefit of any third party, or charge any person, or receive any compensation for the use of the Software or do any of the foregoing in any manner not permitted by the licenses granted herein;
(h) Use the Software to, or in any way that would, violate any applicable law, regulation or ordinance; and
(i) Use the Software for the purposes of competing with Contractor, including without limitation competitive intelligence.
4. Term and Termination.
4.1 This SIGBOX EULA is effective from the moment of acceptance as described in the first paragraph of this SIGBOX EULA or from the Start Date, whichever date is earlier.
4.2 This SIGBOX EULA shall remain in force either until the expiration date specified in the Order or, upon renewal of Customer’s License by mutual agreement of the parties in writing, the expiration date of Customer’s renewed License as set out in an Order provided to Customer by Contractor, or until terminated as provided in Clause 4.3 below, whichever is the sooner.
4.3 Without prejudice to any other rights, this SIGBOX EULA will terminate automatically if Customer fails to comply with any of the limitations, fails to pay the Fee or fails to comply with any other requirements described herein. Contractor may terminate this SIGBOX EULA if Customer breaches any term of the SIGBOX EULA by giving Customer written notice of Customer’s breach and Contractor’s decision to terminate the SIGBOX EULA. Further, Contractor may terminate this SIGBOX EULA upon sixty (60) days prior written notice to Customer for convenience. Upon termination of the SIGBOX EULA by Contractor, Customer agrees to return to Contractor the Software, Documentation, all copies thereof, and all license keys that Customer has obtained, or to destroy all such materials and provide written verification of such destruction to Contractor.
4.4 Customer’s obligations and Contractor’s rights under this SIGBOX EULA with respect to Sections 2.4, 3, 4.3, 5, 6, 7, 8, 9, 10 and 11 shall survive any expiration or termination of this SIGBOX EULA.
5.1 Customer acknowledges that in connection with Customer’s licensing of the Software and this SIGBOX EULA, Customer will be provided with confidential and proprietary data and information from time to time, including without limitation, through the Software, Documentation, Contractor’s provision of support and maintenance, and otherwise (“Confidential Information”). Such Confidential Information shall be owned by Contractor and its licensors.
5.2 All information defined as Confidential Information in clause 5.1 above will be subject to the confidentiality provisions of the Head Agreement.
6. Representations and Warranties
6.1 Customer represents and warrants that Customer: (i) possess the legal right and ability to enter into this SIGBOX EULA and to comply with its terms, (ii) will use the Software for lawful purposes only and in accordance with this SIGBOX EULA and all applicable laws, regulations, ordinances and policies, (iii) will always provide and maintain true, accurate, current and complete information as requested by Contractor, (iv) will only use the Software on a computer or server on which such use is authorized by the computer’s owner or lessee, as applicable, and (v) will not use the Software in association with any illegal or infringing data, code, or Software.
7.1 Customer agrees to indemnify, hold harmless and defend Contractor and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents, business partners and licensors (collectively, the “Indemnified Parties”) at Customer’s expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by Contractor arising out of or relating to Customer’s (a) violation or breach of any term of this SIGBOX EULA, including without limitation, any breach of Customer’s representations, warranties, promises or the license restrictions herein or (b) use or misuse of the Software.
8. Disclaimer of Warranties
8.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE, ANY DATA ENCRYPTED BY USE OF THE SOFTWARE, AND ANY ENCRYPTED OR DECRYPTED DATA RECEIVED THEREFROM, IS PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY CONTRACTOR OR CONTRACTOR’S LICENSORS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE, ANY DATA ENCRYPTED BY USE OF THE SOFTWARE, AND ANY ENCRYPTED OR DECRYPTED DATA RECEIVED THEREFROM, INCLUDING ANY WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. CONTRACTOR AND ITS LICENSORS FURTHER DO NOT REPRESENT OR WARRANT THAT THE SOFTWARE, ANY DATA ENCRYPTED BY USE OF THE SOFTWARE, AND ANY ENCRYPTED OR DECRYPTED DATA RECEIVED THEREFROM, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE, WILL OPERATE WITHOUT LOSS OF THE UNDERLYING DATA, OR WILL BE UNHACKABLE OR UNENCRYPTABLE.
8.2 CUSTOMER ACKNOWLEDGES THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, ANY DATA ENCRYPTED BY USE OF THE SOFTWARE, AND ANY ENCRYPTED OR DECRYPTED DATA RECEIVED THEREFROM, REMAINS WITH CUSTOMER TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8.3 No oral or written information or advice given by Contractor, its dealers, distributors, agents or employees shall create a warranty or in any way increase the scope of any warranty provided herein.
9. Limited Warranty and Liability
9.1 To the maximum extent permitted by law, in no event will Contractor and its licensors be liable for any lost profits or business opportunities, loss of use, loss of revenue, loss of goodwill, business interruption, loss of data, or any other indirect, special, incidental, or consequential damages under any theory of liability, whether based in contract, tort, negligence, product liability, or otherwise. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the preceding limitation may not apply to Customer. Contractor’s and its licensors’ liability under this SIGBOX EULA will not, in any event, regardless of whether the claim is based in contract, tort, strict liability, or otherwise, exceed the License Fees Customer paid for the Software, if any. The foregoing limitations shall apply regardless of whether Contractor or its licensors have been advised of the possibility of such damages and regardless of whether any remedy fails of its essential purpose.
9.2 Notwithstanding clause 9.1, with respect to any License applicable to the territory of Australia, Customer acknowledges that Contractor’s liability under any statutory right or any condition or warranty implied by the Australian Consumer Law and which cannot be excluded is to the extent permitted by law limited at the option of Contractor to:
(a) In the case of any goods, any one or more of the following:
(i) The replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of any services:
(i) the supply of the services again; or the payment of the cost of having the services supplied again.
10.1 Customer hereby agrees that Contractor would be irreparably damaged if the terms of this SIGBOX EULA were not specifically enforced, and therefore Customer agrees that Contractor shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies in any court of competent jurisdiction with respect to breaches of this SIGBOX EULA, in addition to such other remedies as Contractor may otherwise have available to it under applicable laws. In the event any litigation is brought by either party in connection with this SIGBOX EULA, the prevailing party in such litigation shall be entitled to recover from the other party all the costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
10.2 This SIGBOX EULA, including accepted Orders and any amendments hereto, contain the entire agreement of the parties with respect to the subject matter of this SIGBOX EULA and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof. No amendment to or modification of this SIGBOX EULA by Customer will be binding unless in writing and signed by both parties. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in Customer’s jurisdiction. Nothing in this SIGBOX EULA shall constitute a partnership, agency or joint venture between Customer and Contractor. The failure of Contractor at any time or times to require performance of any provision of this SIGBOX EULA shall in no manner affect its right at a later time to enforce the same unless the same is waived in writing.
11.1 Documentation means documentation that is provided to Customer by Contractor with the Software, as revised by Contractor from time to time, and which may include end user manuals, operation instructions, installation guides, release notes, and on-line help files regarding the use of the Software.
11.2 E-mail ID means those email addresses identified in an Order where each individual owner of such address is entitled to utilize the Software in accordance with each License purchased hereunder.
11.3 Intellectual Property Rights means any and all present and future intellectual and industrial property rights and includes, without limitation, any registered or unregistered forms of copyright (and rights allied to copyright and any reversions and extensions of copyright), designs, patents, trademarks, service marks, domain names, good will and any commercial information (including know how and confidential information), any application or right to apply for registration of any of these rights, any rights protected or recognized under any laws throughout the world related to the above or any similar laws, and anything copied or derived from such property or rights.
11.4 License means individually, the right of one (1) individual to utilize the Software under the terms of this SIGBOX EULA and collectively, the right of all individuals whom Customer has purchased a right to utilize the Software under the terms of this SIGBOX EULA.
11.5 SIGBOX EULA means this Contractor End User SIGBOX EULA and any associated Orders incorporated herein by reference.
11.6 License Fee means the fee amount outlined on an Order for use of the Software under the terms of this SIGBOX EULA.
11.7 License Term means the duration of a License as specified in the Order and set forth in Section 3 of this SIGBOX EULA.
11.8 License Type means the type of License applicable to the Software, either a Server License, User License or combination thereof, as described in the Order.
11.9 Customer means the purchaser of the license rights granted by this SIGBOX EULA and ‘Customer’s’ means belonging to Customer or engaged by Customer or otherwise pertaining to Customer as the context so allows, whether on a temporary basis or otherwise.
11.10 Maintenance means collectively upgrades and/or updates where applicable to the Software as Contractor deems appropriate, and standard technical support or enhanced technical support if Customer has paid a Support Fee.
11.11 Maintenance Fee means the sums payable by Customer in respect of a right to receive Maintenance for the Maintenance Term as set forth in an Order.
11.12 Maintenance Term means the period for which Customer is eligible to receive Maintenance. For all Software other than Software licensed on a perpetual basis, the Maintenance Term is coterminous with the License Term. For Software licensed on a perpetual basis, the Maintenance Term means the period for which Customer has paid the applicable Maintenance Fee as may be set out in the Order.
11.13 Order means a purchase order, enterprise SIGBOX EULA, or other ordering document issued by Contractor to Customer that references and incorporates this SIGBOX EULA.
11.14 Software means Contractor’s software supplied to Customer in connection with this agreement (for example the Contractor suite of software incorporating all or any of the Contractor SIGBOX applications) in whole or in part, including upgrades or modifications delivered to Customer by Contractor (and, if so agreed, any enhancements delivered to Customer by Contractor);
11.15 Start Date means such date as may be set out in the Order that the License Term commences hereunder.
11.16 Support Fee means the sums payable by Customer in consideration of the provision by Contractor of enhanced support services, if applicable as may be set out in the Order.
11.17 Third Party Agent means a third party delivering information technology services to Customer pursuant to a written contract with Customer.