END USER LICENSE AGREEMENT FOR CERTAIN SOFTWARE FOR YOUR PRODUCT.
IMPORTANT – READ THIS AGREEMENT BEFORE USING YOUR PRODUCT. USING YOUR PRODUCT INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT.
This End User License Agreement (“EULA”) is a legal agreement between you and Defender Security Limited. (“Defender”), as the licensor of the software (except for Excluded Software as defined below) in the Product and related materials which shall be collectively referred to as the “Software.” This EULA covers the Software, including but not limited to the software of Defender’s affiliates and third party licensors (“Third Party Licensors”), and accompanying printed or online documentation. The Software includes all of the software in your Product, including updates or modified software provided to you by Defender, whether stored on media or downloaded via any method, but not Excluded Software as defined below.
Defender may add to, change, or remove any part, term, or condition of this EULA, including but not limited to as it applies to the Software at any time without prior notice or liability to you. Any such additions, changes, or removals posted at defender-pro.com/terms-and-conditions shall apply as soon as they are posted. By continuing to use the Product or Software after so posted, you are indicating your acceptance thereto.
Notwithstanding the foregoing limited license grant, you acknowledge that the Product includes software subject to other terms and conditions governing the use of such software other than this EULA (“Excluded Software”). Certain Excluded Software may be covered by open source software licenses (“Open Source Components”), which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including but not limited to any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format. Please visit defender-pro.com/privacy for a list of applicable Excluded Software included in this Product from time to time, and the applicable terms and conditions governing its use. Such terms and conditions may be changed by the applicable third party at any time without liability to you. To the extent required by the licenses covering Open Source Components, the terms of such licenses will apply in lieu of the terms of this EULA. To the extent the terms of the licenses applicable to Open Source Components prohibit any of the restrictions in this EULA with respect to such Open Source Components, such restrictions will not apply to such Open Source Component. To the extent the terms of the licenses applicable to Open Source Components require Defender to make an offer to provide source code in connection with the Software, such offer is hereby made.
INTERNET CONNECTIVITY AND THIRD PARTY SERVICES
You understand, acknowledge and agree that access to certain Product features, including but not limited to registration of the Product, requires an Internet connection for which you are solely responsible. You are solely responsible for payment of any third party fees associated with your Internet connection, including but not limited to Internet service provider or airtime charges. Operation of the Product and Software may be limited or restricted depending on the capabilities, bandwidth or technical limitations of your Internet connection and service. You understand, acknowledge and agree that Internet connectivity in relation to the Product is provided by third parties over which Defender has no control, and is governed by the respective terms of such third parties. The provision, quality, availability and security of such Internet connectivity, software and services are the sole responsibility of such third party.
EXCLUSION OF WARRANTY
THE SOFTWARE AND ACCOMPANYING DOCUMENTATION ARE FURNISHED TO YOU “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES, DUTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. DEFENDER, ITS AFFILIATES, AND THIRD PARTY LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, DUTIES AND CONDITIONS, EXPRESS (EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE BY THIS EULA) OR IMPLIED, STATUTORY OR OTHERWISE, OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. DEFENDER, ITS AFFILIATES, AND THIRD PARTY LICENSORS DO NOT WARRANT THAT THE SOFTWARE OR ACCOMPANYING DOCUMENTATION, WILL MEET YOUR REQUIREMENTS OR PROVIDE SPECIFIC RESULTS, OR THAT THEY WILL BE UPDATED, OR THAT THE OPERATION OF ALL OR ANY OF THEM WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. FURTHERMORE, DEFENDER, ITS AFFILIATES, AND THIRD PARTY LICENSORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR ACCOMPANYING DOCUMENTATION IN TERMS OF THEIR ACCURACY, RELIABILITY, COMPLETENESS OR OTHERWISE. DEFENDER AND ITS AFFILIATES AND THIRD PARTY LICENSORS SHALL HAVE NO RESPONSIBILITY FOR THE SECURITY OF, TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY OF YOUR COMMUNICATIONS OR PERSONALIZED SETTINGS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DEFENDER, ITS AFFILIATES, A DEFENDER AUTHORIZED REPRESENTATIVE OR ANY THIRD PARTY SHALL CREATE A WARRANTY, DUTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY, DUTY AND CONDITION. SHOULD THE SOFTWARE OR THE MEDIA ON WHICH IT IS FURNISHED OR THE ACCOMPANYING DOCUMENTATION PROVE DEFECTIVE, YOU (AND NOT DEFENDER, ITS AFFILIATES, A DEFENDER AUTHORIZED REPRESENTATIVE OR ANY THIRD PARTY) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
WARNING: IF YOU ARE RECEIVING OR PURCHASING A TRIAL LICENSE, THE SOFTWARE MAY CONTAIN A MECHANISM THAT WILL CAUSE THE SOFTWARE TO CEASE PROPER OR FULL FUNCTIONING AFTER A CERTAIN PERIOD OF TIME. THIS MAY OCCUR BEFORE OR AFTER EXPIRATION OR TERMINATION OF THE LICENSE, SO YOU MUST BE PREPARED FOR SUCH EVENT AT ALL TIMES AND MAY NOT RELY ON THE SOFTWARE.
Without limiting the generality of the foregoing, you further understand, acknowledge and agree that the Software is not designed or intended for use on any other Product other than the Product. You expressly acknowledge and agree that any other hardware, software, content or data could be damaged by installing or using the Software on any other Product other than the Product, and Defender, its affiliates and Third Party Licensors are not responsible for any such damage.
LIMITATION OF LIABILITY
IN NO EVENT WILL DEFENDER (INCLUDING BUT NOT LIMITED TO ANY NEGLIGENCE ISSUES RELATED TO THIRD PARTY LICENSORS), ITS AFFILIATES OR THIRD PARTY LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF OR RELATING TO THIS EULA ON ACCOUNT OF THE USE OR LOSS OF USE OF THE PRODUCT, SOFTWARE OR ACCOMPANYING DOCUMENTATION, DOWNTIME OR YOUR TIME, LOSS OF PRESENT OR PROSPECTIVE PROFITS, LOSS OF DATA, INFORMATION OF ANY KIND, BUSINESS PROFITS, OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON WHATSOEVER, WHETHER BASED ON THEORIES OF CONTRACT OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE OR STRICT LIABILITY), EVEN IF DEFENDER, ITS AFFILIATES OR THIRD PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PRODUCT, SOFTWARE AND ACCOMPANYING DOCUMENTATION ARE FURNISHED TO YOU FOR USE AT YOUR OWN RISK. DEFENDER, ITS AFFILIATES, AND THIRD PARTY LICENSORS WILL NOT BE LIABLE FOR DAMAGES FOR BREACH OF ANY EXPRESS (EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE BY THIS EULA OR ACCOMPANYING DOCUMENTATION) OR IMPLIED WARRANTY, DUTY OR CONDITION, UNDER BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE PRODUCT, SOFTWARE, ACCOMPANYING DOCUMENTATION, OR THIS EULA. DEFENDER, ITS AFFILIATES, AND THIRD PARTY LICENSORS CANNOT ENSURE THAT THE PRODUCT, THE SOFTWARE OR OTHER DATA YOU ACCESS OR DOWNLOAD FROM OR THROUGH THE PRODUCT WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES, AND DEFENDER, ITS AFFILIATES, AND THIRD PARTY LICENSORS DISCLAIM ANY LIABILITY RELATED THERETO. DEFENDER, ITS AFFILIATES AND THIRD PARTY LICENSORS FURTHER DISCLAIM ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE PRODUCT OR SOFTWARE. IF, NOTWITHSTANDING THE TERMS OF THIS EULA, DEFENDER, ITS AFFILIATES AND THIRD PARTY LICENSORS ARE FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THIS EULA, INCLUDING BUT NOT LIMITED TO YOUR USE OF THE PRODUCT, THE SOFTWARE, OR ACCOMPANYING DOCUMENTATION, THEIR COLLECTIVE TOTAL AGGREGATE LIABILITY TO YOU SHALL IN NO EVENT EXCEED THE MANUFACTURER’S SUGGESTED RETAIL PRICE OF YOUR PRODUCT.
Some jurisdictions may not allow exclusions or limitations of incidental or consequential damages, exclusions or limitations of implied warranties, duties or conditions, or allow limitations on how long an implied warranty, duty or condition lasts, so the above limitations or exclusions may not apply to you.
HIGH RISK ACTIVITIES
The Software and any other software provided on or through the Product is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software or such other software could lead to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). DEFENDER, THIRD PARTY LICENSORS, AND EACH OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS, LICENSORS AND LICENSEES, AND SUCCESSORS AND ASSIGNS, SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY, DUTY OR CONDITION OF FITNESS FOR HIGH RISK ACTIVITIES. YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTION, OR LACK OF ACTION, TAKEN TO PRESERVE LIFE OR PROPERTY.
(i) Licensor will provide you with the support services (“Support Services”) as defined below for a period of one year upon payment for the Software License;
(ii) Support Services shall be limited to technical support via e-mail and online knowledgebase, such support only available during Licensor’s then current regular business hours for providing such support, which hours may change from time-to-time without notice;
USE OF SOFTWARE WITH COPYRIGHTED MATERIALS
The Software can be used by you to store, process and use content created by you and third parties. Such content may be protected by copyright, other intellectual property laws, and/or agreements. You agree to use the Software only in compliance with all such laws and agreements that apply to such content. You agree that Defender may take appropriate measures to protect copyright of content stored, processed or used by the Software.
The Software may contain encryption technology. You acknowledge that any export of Software containing encryption technology from the United States or subsequent re-export of such software or content by a person located outside of the United States requires a license or other authorization from the U.S. Department of Commerce’s Bureau of Industry and Security. You further acknowledge that the Software containing encryption technology and acquired from Defender or its Third Party Licensors is not intended for use by a foreign government end user. By accepting this EULA, you agree to abide by all relevant U.S. export laws and regulations in the purchase and use of the Product being acquired, including but not limited to those regulations relating to the export control of cryptographic items and not to transfer, or authorize the transfer, of the Product or Software to a prohibited country or otherwise in violation of any such restrictions or regulations.
GOVERNING LAW: This License Agreement shall be governed by the laws of Gibraltar, and any disputes arising in respect of it shall be determined in the exclusive jurisdiction of the Supreme Court of Gibraltar.
You agree that any violation of or non-compliance with any term or condition this EULA by you will constitute an unlawful and unfair business practice, and will cause irreparable harm to Defender, its affiliates or Third Party Licensors for which monetary damages would be inadequate, and you consent to Defender obtaining any injunctive or equitable relief that Defender deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies that may be available to Defender under contract, at law or in equity.
ENTIRE AGREEMENT, NOTICE, WAIVER, SEVERABILITY
THIRD PARTY BENEFICIARIES
This EULA shall not be interpreted or construed to confer any rights or remedies on any third parties, except that each Indemnified Party, and Third Party Licensor shall and is an express intended third party beneficiary of, and shall be entitled to directly enforce and rely upon, each provision of this EULA that confers a right or remedy in favor of such party.
TERM AND SURVIVAL
This EULA is effective until terminated. Defender may terminate this EULA immediately if you fail to comply with its terms by giving you notice. In addition, upon termination you will have no recourse against Defender, its affiliates or Third Party Licensors for your inability to use the Software or the accompanying documentation. Any of your obligations under this EULA which by their nature are intended to survive the termination of this EULA or your use of the Product or Software shall continue to apply to you after the termination of this EULA or you cease to use the Product or Software.
Should you have any questions concerning this EULA, you may contact Defender by writing to Bling Software Ltd., 57/63 Line Wall Road, Gibraltar, Attn.: Defender Customer Relations.