End User License Agreement
Provided that you comply with all terms and conditions of this EULA and pay all applicable fees, Growlink grants you a non-exclusive, non-transferable, internal, limited license to use the applicable Software hereby licensed to you, in executable object code form only, solely for use on the applicable device that you own or control and solely for use in conjunction with the applicable Products. All rights of every kind that are not expressly granted to you in this EULA are entirely and exclusively reserved to and by Growlink. You may use this Software solely as expressly provided in this EULA. You may not rent, lease, loan, sublicense, modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Product or Software, nor assist or permit anyone else to do so.
The Software and associated documentation and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Growlink and its licensors. Growlink and its licensors reserve all rights in and to the Software not expressly granted to you in this EULA. The Software is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to Growlink with respect to the Software shall be Growlink’s property.
Certain items of independent, third-party code may be included in the Software that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in this EULA restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the applicable license (available at www.Growlink.com/opensource).
TERM AND TERMINATION
This EULA and the license granted hereunder are effective on the date you first use the Software or Product and shall continue for as long as you own the Product, unless this EULA is terminated earlier as provided under this section. Growlink may terminate this EULA at any time if you fail to comply with any terms hereof or fail to pay any fees when due to Growlink. You may terminate this EULA effective immediately upon written notice to Growlink. In the event of any termination of this EULA or your rights hereunder, all provisions of this EULA except the License Grant in Section 2 shall survive such termination and you agree to continue to be bound by these terms. Upon termination, you agree to immediately cease using and destroy all copies of the Software.
DISCLAIMER OF WARRANTY
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GROWLINK PROVIDES THE SOFTWARE “AS IS” WITHOUT WARRANTY OF ANY KIND UNLESS EXPRESSLY STATED OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GROWLINK FURTHER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GROWLINK OR A GROWLINK AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. GROWLINK MAKES NO WARRANTY THAT THE SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
LICENSE RIGHTS, USE RESTRICTIONS AND MAINTENANCE
Growlink reserves all rights not expressly granted to you in this EULA. Without limiting the generality of the foregoing, you shall not (except to the limited extent expressly permitted by applicable law): (a) copy, modify, rent, lease, sell, distribute, use as a service provider for third parties or other similar type of environment, sublicense, translate, or reprogram the Software or any portion thereof; (b) timeshare the Software, make the Software available to others on the Internet or any on-line service, or allow others to copy, access or use the Software; (c) reverse engineer, decompile, or disassemble the Software; (d) use any individual component of the Software in a standalone mode; (e) create derivative works based upon the Software; (f) use the Software to perform any activity that is or may be, directly or indirectly, unlawful, harmful, threatening, abusive, harassing, tortuous, or defamatory, nor to perform any activity that breaches the rights of any third party; (g) take any actions that would cause the Software to become subject to any open source or quasi-open source license agreement not otherwise applicable; or (h) transfer the Software or your license rights under this EULA, in whole or in part.
IN ADDITION, IN NO EVENT DOES GROWLINK AUTHORIZE YOU OR ANYONE ELSE TO USE THE SOFTWARE WHERE THE SOFTWARE’S FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO RESULT IN SIGNIFICANT PHYSICAL INJURY, OR IN LOSS OR PROPERTY, OR IN LOSS OF LIFE. ANY SUCH USE IS ENTIRELY AT YOUR OWN RISK, AND YOU AGREE TO INDEMNIFY AND HOLD GROWLINK HARMLESS FROM ANY AND ALL CLAIMS OR LOSSES RELATING TO SUCH UNAUTHORIZED USE.
Growlink may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Software (“Updates”). You acknowledge that you may be required to install Updates to use the Software and you agree to promptly install any Updates Growlink provides. In addition, you acknowledge that Growlink may update the Software without requiring any additional consent or action from you, and you consent to Growlink automatically updating the Software, as described above by connecting to the Growlink server. If you do not wish to receive such Updates, your remedy is to discontinue using the applicable Internet services in conjunction with the Software or discontinue using the Software.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY BUT SUBJECT TO THE LAST SENTENCE OF THIS SECTION, (A) GROWLINK WILL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES RELATING TO THE SOFTWARE OR THIS EULA, EVEN IF GROWLINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) GROWLINK’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE SOFTWARE AND THIS EULA, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED IN THE AGGREGATE THE PORTION OF THE FEES THE PAID FOR THE SOFTWARE DURING THE SIX MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY OR REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR PRODUCT, AS DETERMINED IN GROWLINK’S SOLE DISCRETION. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. GROWLINK DISCLAIMS ALL LIABILITY OF ANY KIND OF GROWLINK’S SUPPLIERS, DISTRIBUTORS, DEALERS, THIRD PARTY SERVICE TECHNICIANS AND INSTALLERS. GROWLINK IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE IN SUCH JURSIDICTIONS.
YOUR INDEMNIFICATION OF GROWLINK
You agree to defend, indemnify and hold harmless Growlink, and its officers, directors, employees, consultants, agents, and other representatives, from and against any and all suits, claims, actions, proceedings, damages, demands, injuries, liabilities, losses, costs and expenses (including reasonable attorneys’ fees), arising from or related to: (a) your negligence or willful misconduct; (b) your use of the Software; (c) your breach of any of your representations, warranties, obligations, or covenants in this Agreement; and (d) your use of Third-Party Content, defined below.
The Software is commercial in nature, and is a “Commercial Item,” as that term is defined in 48 C.F.R.§2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are defined in 48 C.F.R. §252.227-7014(a)(5) and 48 C.F.R. §252.227-7014(a)(1), and used in 48 C.F.R. §12.212 and 48 C.F.R. 227.7202, as applicable. Pursuant to 48 C.F.R. §12.212, 48 C.F.R.§252.227-7015, 48 C.F.R. §227.7202 through 227.7202-4, 48 C.F.R. §52.227-19, and other relevant sections of the Code of Federal Regulations, as applicable, the Software and all related publications, commercial computer software, and commercial computer software documentation are distributed and licensed to United States Government end users, if at all, with only those rights as granted to all other end users, according to the terms and conditions contained in this EULA.
You agree to comply with all export and import laws and restrictions and regulations of any applicable United States or foreign agency or authority, and not to export, re-export or import the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. For example, you may not export or re-export any commodities, software, or technical data received from Growlink, or any direct product of such commodities, software or technical data, to any proscribed country, party, or entity listed in the applicable laws, regulations, and rules of the U.S. government, or any applicable foreign governmental authority, unless properly authorized. As applicable, you and Growlink each shall obtain and bear all expenses and responsibility relating to any necessary EULAs and/or exemptions with respect to its own export or re-export of the Software. The information regarding export laws set forth herein is not necessarily complete, and you should refer to the relevant governmental authority for more information.
This EULA constitutes the entire agreement between you and Growlink concerning the subject matter hereof, and may only be modified by a written amendment signed by you and an authorized executive (Vice President or higher) of Growlink. (b) Except to the extent that applicable law (if any) provides otherwise, this EULA shall be governed by the laws of the State of Utah, excluding its conflict of law provisions. (c) You expressly agree that jurisdiction for any claim or dispute arising from the use of the Software resides in the federal and state courts of the State of Utah and you consent to the personal jurisdiction thereof. (d) This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (e) YOU AND GROWLINK EACH HEREBY UNCONDITIONALLY WAIVE YOUR AND ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING DIRECTLY OR INDIRECTLY OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN YOU AND GROWLINK. The scope of this waiver is intended to be all encompassing of any and all disputes that may be filed in any court or other tribunal (including, without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims). THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS TO THIS AGREEMENT, AND RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. (f) If any part of this EULA is held invalid or unenforceable, that part shall be construed to reflect the parties’ original intent, and the remaining portions remain in full force and effect, or Growlink may at its option instead terminate this EULA. (g) The controlling language of this EULA is English. If you have received a translation into another language, it has been provided for your convenience only. (h) A waiver by either party of any term or condition of this EULA or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (i) You may not assign or otherwise transfer by operation of law or otherwise this EULA or any rights or obligations herein. Growlink may assign this EULA to any entity at its sole discretion. (j) This EULA shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (k) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.