(1) THE AUTHENTIX SOFTWARE THAT ACCOMPANIES THIS AGREEMENT INCLUDING ANY UPGRADES, UPDATES, BUG FIXES AND OR MODIFIED VERSIONS THERETO AND ANY ASSOCIATED MEDIA, INCLUDING MANUALS (IF ANY), WHETHER PRINTED OR IN ELECTRONIC FORM (COLLECTIVELY, THE “SOFTWARE”); AND (2) THE SERVICE PROVIDED BY AUTHENTIX THROUGH THE SOFTWARE TO CONFIRM THE AUTHENTICITY OF THIRD PARTY PRODUCT OFFERINGS (THE “SERVICE”).
IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY. IT IS VERY IMPORTANT THAT YOU CHECK THAT YOU ARE RECEIVING THE SOFTWARE FROM AN APPROVED SOURCE AND THAT YOU HAVE BEEN REGISTERED AS THE END USER FOR THE PURPOSES OF THIS AUTHENTIX END USER LICENSE AGREEMENT. WITHOUT REGISTRATION, YOU HAVE NO LICENSE TO USE THE SOFTWARE AND THE SERVICE. IF YOU HAVE RECEIVED THE SOFTWARE FROM AN APPROVED SOURCE, DOWNLOADING, INSTALLING OR USING THIS SOFTWARE AND THE SERVICE CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT.
AUTHENTIX IS WILLING TO LICENSE THIS SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU RECEIVED THE SOFTWARE FROM AN APPROVED SOURCE AND THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN AUTHENTIX IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MAY NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE AND / OR USE THE SERVICE.
AN “APPROVED SOURCE” MEANS (A) AUTHENTIX; OR (B) A DISTRIBUTOR AUTHORIZED TO DISTRIBUTE/SELL PRODUCTS AND SERVICES FOR USE WITH REQUIRED SECURITY LABELS (THE “SECURITY LABELS”).
THE FOLLOWING TERMS OF THE AGREEMENT GOVERN YOUR USE OF THE SOFTWARE AND THE SERVICE PROVIDED BY AUTHENTIX.
- 1. License Grant, Restrictions and Indemnity
- 1.1 Subject to continued compliance with the terms and conditions of the Agreement, AUTHENTIX grants to you a non-exclusive, non-transferable and revocable license to use the Software.
- 1.2 Your license to use the Software shall be limited to use on a single handled device for the purpose of scanning the Security Labels for your own internal purposes and using the Service. No other licenses are granted by implication, estoppel or otherwise.
- 1.3 This is a license, not a transfer of title, to the Software and AUTHENTIX or its suppliers or licensors retain ownership of all copies of the Software. You acknowledge that the Software contains valuable intellectual property and trade secrets of AUTHENTIX or its suppliers or licensors. Except as otherwise expressly provided under the Agreement, You shall only use the Software in connection with the use of the Security Labels and the Service and for no other purposes whatsoever.
- 1.4 You shall have no right, and specifically agree not to (nor permit any third party to):
- a) transfer, assign or sublicense Your license rights to any other person or entity;
- b) make error corrections to or otherwise modify or adapt or reverse engineer or disassemble the Software or create derivative works based upon the Software except to the extent permitted under applicable law;
- c) publish any results of benchmark tests run on the Software and / or the Service;
- d) disclose, provide, or otherwise make available intellectual property and trade secrets contained within the Software and / or the Service to any third party and shall treat the Software and / or the Service in the same manner as You do Your own intellectual property, personal data and confidential information but with no less than a reasonable degree of care; and
- e) make any additional copies of the Software unless required solely for back-up purposes.
- 1.5 You agree to indemnify, defend and hold harmless AUTHENTIX, its or its suppliers or licensors, affiliates and officers, directors, employees, representatives and agents for any loss, damage or liability arising from Your breach of any provision of this Agreement.
- 2. Proprietary Notices
- You agree to maintain and reproduce all copyright, proprietary, and other notices on all copies, in any form, of the Software as they are provided to You.
- 3. Term and Termination
- 3.1 This Agreement and the license granted herein shall remain effective until terminated.
- 3.2 Your rights to use the Software under this Agreement and to access the Service will terminate immediately without notice from AUTHENTIX if You breach any provision of this Agreement. In such event, You shall destroy all copies of Software and no longer access the Service. The provisions herein relating to confidentiality, indemnity and limitations of liability shall survive any termination of this Agreement.
- 3.3 You may terminate the Agreement and the license at any time by ceasing all use of the Software and destroying all copies of the Software in Your possession and no longer accessing the Service.
- 4. Export and Re-Export Controls
- The Software supplied under the Agreement is subject to export controls under the laws and regulations of the European Union, the United States and any other applicable countries’ laws and regulations. You agree to comply with such laws and regulations governing export, re-export, import, transfer and use of the Software.
- 5. Limited Warranty
- 5.1 AUTHENTIX represents and warrants the following: the Software is capable of meeting the specifications included in the documentation or operating instructions, if any, provided hereunder on the condition that it is used in accordance with its operating instructions and the terms herein.
- 5.2 Your sole and exclusive remedy for breach of the foregoing representation shall be AUTHENTIX’s commercially reasonable efforts to redeliver the affected Software.
- 6. DISCLAIMER OF WARRANTY
- IN NO EVENT DOES AUTHENTIX WARRANT THAT THE SOFTWARE AND / OR THE SERVICE IS ERROR FREE OR THAT YOU WILL BE ABLE TO OPERATE THE SOFTWARE AND / OR THE SERVICE WITHOUT PROBLEMS OR INTERRUPTIONS. IN ADDITION, DUE TO THE CONTINUAL DEVELOPMENT OF NEW TECHNIQUES FOR BREACHING NETWORKS, AUTHENTIX DOES NOT WARRANT THAT THE SOFTWARE AND / OR THE SERVICE OR ANY EQUIPMENT, SYSTEM OR NETWORK ON WHICH THE SOFTWARE AND / OR THE SERVICE IS USED WILL BE FREE OF VULNERABILITY TO SUCH BREACH. FURTHERMORE, THE CONFIRMATION OF AUTHENTICITY IS PROVIDED FOR INFORMATION PURPOSES ONLY AND AUTHENTIX SHALL NOT BE LIABLE FOR ANY FAILED OR INCORRECT AUTHENTICATION IN ACCORDANCE WITH THE PROVISIONS HEREIN. YOU ACKNOWLEDGE THAT YOU SHALL BEAR THE SOLE RISK OF PURCHASING AND/OR CONSUMING ANY PRODUCTS AND / OR SERVICES WHICH ARE NOT AUTHENTIC.
EXCEPT AS SPECIFIED IN THIS WARRANTY SECTION ABOVE, THE SOFTWARE AND THE SERVICE IS PROVIDED ‘AS IS’ AND ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY AUTHENTIX, ITS SUPPLIERS AND LICENSORS.
THE WARRANTY PROVIDED HEREIN GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
- 7. DISCLAIMER OF LIABILITIES AND LIMITATION OF LIABILITY
- ALL LIABILITY OF AUTHENTIX, ITS SUPPLIERS, VENDORS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS COLLECTIVELY, TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, SHALL NOT EXCEED THE PRICE PAID BY YOU FOR THE SOFTWARE OR THE SERVICE THAT GAVE RISE TO THE CLAIM OR IF THE SOFTWARE IS PART OF ANOTHER PRODUCT OR SERVICE, THE PRICE PAID FOR SUCH OTHER PRODUCT OR SERVICE. THIS LIMITATION OF LIABILITY FOR SOFTWARE AND THE SERVICE IS CUMULATIVE AND NOT PER INCIDENT. NOTHING IN THE AGREEMENT SHALL LIMIT (I) THE LIABILITY OF AUTHENTIX, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS TO CUSTOMER FOR PERSONAL INJURY OR DEATH CAUSED BY THEIR NEGLIGENCE, (II) AUTHENTIX’S LIABILITY FOR FRAUDULENT MISREPRESENTATION, OR (III) ANY LIABILITY OF AUTHENTIX WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
IN NO EVENT WILL AUTHENTIX, ITS SUPPLIERS, VENDORS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, BE LIABLE FOR ANY LOST REVENUE, LOST PROFIT, OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, HOWSOEVER ARISING, INCLUDING, WITHOUT LIMITATION, IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE AND THE SERVICE, EVEN IF, IN EACH CASE, AUTHENTIX, ITS SUPPLIERS, VENDORS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT FULLY APPLY TO YOU. THE FOREGOING EXCLUSION SHALL NOT APPLY TO ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH: (I) DEATH OR PERSONAL INJURY, (II) FRAUDULENT MISREPRESENTATION, OR (III) AUTHENTIX’S LIABILITY IN CONNECTION WITH ANY TERMS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
- 8. Terms of Service, Your Data and Consent to Use of Data
- 8.1 Your data will be used for the purpose of providing the Service to confirm that the Security Labels on the associated product offerings are authentic. Furthermore, You hereby consent and agree that AUTHENTIX may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and the Service to You (if any) related to the Software. AUTHENTIX may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You or a Third Party. Furthermore, your data will be used in compliance with relevant data protection laws.
- 8.2 The confirmation of authenticity provided through the Service may include links to third party manufacturers’ websites which are subject to the relevant terms and conditions of such third parties. To access further product information or services provided by such third parties you may be required to accept such third-party terms and conditions. AUTHENTIX DOES NOT ACCEPT ANY LIABILITY FOR SUCH THIRD-PARTY SITES, THEIR CONTENT AND RELATED SERVICES AND YOUR USE OF SUCH SITES WILL BE GOVERNED BY THE APPROPRIATE TERMS AND CONDITIONS OF USE OF SUCH THIRD PARTY.
- 9. Miscellaneous
- 9.1 Except as may be otherwise provided under the EU/GDPR, this Agreement and warranties provided herein are controlled by and construed under the laws of Delaware, notwithstanding any conflicts of law provisions; and the Delaware courts shall have exclusive jurisdiction over any claim arising under the Agreement. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights.
- 9.2 No person who is not a party to the Agreement shall be entitled to enforce or take the benefit of any of its terms herein.
- 9.3 The parties specifically disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods.
- 9.4 If any portion hereof is found to be void or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.
- 9.5 Except as expressly provided herein, this Agreement constitutes the entire agreement between the parties with respect to the license of the Software and the provision of the Service and supersedes any conflicting or additional terms contained elsewhere all of which terms are excluded.
- 9.6 The Agreement has been written in the English language, and the parties agree that the English version will govern.