The terms and conditions of this End User Software License Agreement (this “License Agreement”) govern your use of the accompanying software (the “Software”) made available by SlimWare Utilities Inc. (the “Company”) and constitute a binding legal contract between you and the Company.
YOUR DOWNLOAD, INSTALLATION AND/OR USE OF THE SOFTWARE CONSTITUTES ACCEPTANCE OF THIS LICENSE AGREEMENT. PLEASE READ THIS LICENSE AGREEMENT CAREFULLY, AS IT INCLUDES, AMONG OTHER THINGS, YOUR AGREEMENT NOT TO BRING OR PARTICIPATE IN CLASS ACTION CLAIMS AGAINST THE COMPANY, YOUR AGREEMENT TO ARBITRATE CERTAIN TYPES OF CLAIMS INSTEAD OF GOING TO COURT AND THE COMPANY’S COLLECTION AND USE OF CERTAIN DATA IN CONNECTION WITH YOUR USE OF THE SOFTWARE.
If you do not agree to any part of this License Agreement, then you may not use the Software and must delete all copies of the Software in your possession or control.
If you are accepting the terms of this Agreement on behalf of a legal entity, you represent and warrant that you have the authority to bind that legal entity to the terms of this License Agreement, and, in such event, “you” and “your” will refer to that legal entity. If you do not have such authority, you must not accept this License Agreement, in which case you may not download, install or use the Software.
If the Software you are obtaining in connection with this License Agreement is designated as “free” software that is made available by the Company to you at no charge (“free Software”), the Company hereby grants to you, subject to all terms and conditions of this License Agreement, a limited, nonexclusive, nontransferable license (without right to sublicense) to install and use the Software in object code form solely for your personal, non-commercial use on one personal computer system that you own, solely in accordance with all applicable documentation and other instructions provided by the Company. You may make one copy of the Software for backup and archival purposes. You acknowledge that, as further described in Section 7, the paid Software may require an Internet connection to the Company Servers in order to provide some or all of its functionality. In such event, you acknowledge that the foregoing license is not granted for any particular period of time and is subject to suspension or termination without notice in the event the Company (for any reason or for no reason) suspends or terminates operation of the Company Servers necessary for the free Software to function.
If you are paying a license fee for the Software you are obtaining in connection with this License Agreement (“paid Software”), the Company hereby grants to you, subject to all terms and conditions of this License Agreement, solely for the time period applicable to the license fee you have paid and effective upon such payment being made, a limited, nonexclusive, nontransferable license (without right to sublicense) to install and use the paid Software in object code form solely for your personal, non-commercial use on the number of personal computer systems applicable to the licensee fee you have paid, where you own such personal computer systems, solely for the intended use of such paid Software and solely in accordance with all applicable documentation and other instructions provided by the Company. You may make one copy of the paid Software for backup and archival purposes. You acknowledge that, as further described in Section 7, the paid Software may require an Internet connection to the Company Servers in order to provide some or all of its functionality.
Certain Software may be used in either a free form or a paid form. For the avoidance of doubt, such software shall be licensed under Section 1 when used in its free form and shall be licensed under Section 2 when used in its paid form.
The Company hereby grants you, a limited, nonexclusive, nontransferable license to internally use any documentation provided by the Company regarding the Software (“Documentation”) as reasonably necessary for your authorized use of the Software. You may make a reasonable number of copies of the Documentation in connection with exercising the foregoing license. Without limiting any other terms and conditions of this License Agreement, you may not transfer or provide the Documentation to any third party.
The Software includes certain third party open source software components. Each such component is identified and is subject to the open source license agreement indicated in the “Open-Source Licenses.txt” file included with the distribution of the Software.
NO OTHER RIGHTS
You have no rights or licenses with respect to the Software or Documentation except as expressly provided in this License Agreement. Without limiting the generality of the foregoing, you may not, except to the extent expressly provided for in Sections 1, 2 and 3 above: (a) copy, distribute, rent, lease, lend, sublicense or transfer the Software or Documentation or use the Software or Documentation on a service bureau basis; (b) decompile, reverse engineer, or disassemble the Software or otherwise attempt to discover the source code of the Software, except solely to the extent such acts are authorized under applicable law notwithstanding this prohibition; (c) create derivative works based on the Software or Documentation; (d) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that may appear on the Software or Documentation or during the use and operation thereof; or (e) cause the Software to become subject to the terms of any open source license agreement. You agree not to provide any license key or registration key issued to you in connection with the Software (“Key”) to any third party. You are solely responsible for maintaining the security and confidentiality of any Key. Any Key which the Company discovers is being used by more than the number of users authorized for that Key is subject to deactivation, meaning that you will no longer be able to use the Software.
You are not required to provide any ideas, feedback or suggestions regarding the Software (collectively, “Feedback”) to the Company. To the extent you do provide any Feedback to the Company, you agree to assign and hereby do assign all right, title and interest in and to such Feedback to the Company and acknowledge that the Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to you.
Notwithstanding the use by the Company of terms such as “sale” and “purchase” in relation to the Software, the Software and Documentation are licensed, not sold. The Software and Documentation provided hereunder are the property of the Company or its third-party licensors. As between you and the Company, the Company shall retain all right, title and ownership interest and all worldwide patent, copyright, trade secret, trademark and other intellectual property rights and other proprietary rights in and to the Software and Documentation and any copies, derivative works, upgrades, updates, improvements and modifications thereof, in, regardless of the form or media in which, or on which, the original and any other copies, derivative works, upgrades, updates, improvements or modifications may exist.
The Software may require an Internet connection to servers owned, operated or controlled by the Company (“Company Servers”) in order to provide some or all functions. You are solely responsible for obtaining and paying for all Internet access services, software and hardware necessary for use of the Software. You acknowledge and agree that the Company Servers may be unavailable from time to time due to (i) equipment, software or service malfunctions; (ii) maintenance and update procedures or repairs; or (iii) causes beyond the control of the Company, including, without limitation, interruption or failure of telecommunication or digital transmission links, acts and omissions of service providers and other third parties, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, and that Company shall not be liable for any inability to use the Software caused by any of the foregoing.
You acknowledge that the Software may include functionality that allows it to automatically download updates that may be made available by the Company. You hereby consent to the installation of such functionality. The Software may include the ability to modify the settings associated with such functionality.
THIRD PARTY OFFERINGS
The Software may include information regarding or links to, or allow you to download or cause to be downloaded (at your direction), third party content, software (such as driver software) or other products and services (“Third Party Offerings”). The Company does not own, operate, control or endorse Third Party Offerings, and shall have no liability to you in connection therewith. Any dealings between you and any third party in connection with a Third Party Offering, including without limitation any provision of personal information or purchase of any Third Party Offering, is solely between you and such third party. You hereby assume all risk and liability arising out of or relating to Third Party Offerings.
If you breach any provision of this License Agreement, this License Agreement (including all of your rights and licenses with respect to the Software and Documentation) shall immediately terminate without further notice from or action by the Company. Upon termination or expiration of this License Agreement, you agree to cease all use of the Software and Documentation and to delete all copies thereof in your possession or control. The provisions of Sections 4 through 23 shall survive any termination or expiration of this Agreement.
THE SOFTWARE AND DOCUMENTATION ARE FURNISHED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE COMPANY MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND THE DOCUMENTATION, INCLUDING WITH RESPECT TO THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION IS WITH YOU.
Some states or jurisdictions do not allow the exclusion of implied warranties, so the above limitations may not apply to you.
IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS LICENSE AGREEMENT OR YOUR USE OF (OR INABILITY TO USE) THE SOFTWARE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATING TO THIS LICENSE AGREEMENT OR YOUR USE OF (OR INABILITY TO USE) THE SOFTWARE EXCEED (1) WITH RESPECT TO FREE SOFTWARE, TEN US DOLLARS AND (2) WITH RESPECT TO PAID SOFTWARE, THE AMOUNT PAID BY YOU FOR THE SOFTWARE. YOU STIPULATE THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS ON DAMAGES ARE REASONABLE UNDER THE CIRCUMSTANCES AND ACKNOWLEDGE THAT WITHOUT SUCH EXCLUSIONS AND LIMITATIONS THE COMPANY WOULD NOT MAKE AVAILABLE THE SOFTWARE WITHOUT CHARGE OR AT THE PRICE PAID BY YOU, AS APPLICABLE. THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE EXISTENCE OF MULTIPLE CLAIMS OR THE THEORY OF LIABILITY, AND REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
Some states or jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the foregoing limitation or exclusions may not apply to you.
GOVERNMENT RESTRICTION RIGHTS
To the extent that you are an agency or instrumentality of the U.S. government, the parties agree that the Software and Documentation are commercial computer software and commercial computer software documentation, respectively, and that your rights therein are as specified in this License, per FAR 12.212 and DEARS 227.7202-3, as applicable, or in the case of NASA, subject to NFS 1852.227-86.
You may not assign your rights under this License Agreement without the express prior consent of the Company. If you are a legal entity, then any merger involving you, acquisition of all or substantially all of your assets or any change of control of you shall be deemed an assignment of this Agreement for which prior written consent is required. The Company may freely assign this Agreement.
EXPORT; RESTRICTED PERSONS
The Software is subject to export laws and regulations. You agree to comply with any United States and international export laws and regulations that may apply. You hereby represent and warrant that you are not a Restricted Person. For purposes of this Agreement, a “Restricted Person” is any person or entity, or any officer, director, or controlling shareholder of an entity, that is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, North Korea, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of any person or entity described under the foregoing (1) through (4).
. Any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought by either party is less than $10,000 shall be resolved exclusively via binding non-appearance-based arbitration initiated through the American Arbitration Association (“AAA”). The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In any such arbitration, the parties and AAA must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; (c) the arbitrator may award injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Agreement shall prevent either party from seeking remedies in small claims court of competent jurisdiction.
CLASS ACTION; TIME LIMITS
YOU AGREE THAT ANY CLAIMS SUBJECT TO ARBITRATION UNDER SECTION 18 MUST BE MADE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS LICENSE AGREEMENT OR THE SOFTWARE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
This License Agreement shall be governed by and construed in accordance with the laws of the state of Mississippi, USA, without giving effect to any principles of conflicts of law. You agree that any action arising out of or relating to this License Agreement which is not subject to arbitration under Section 18 shall be filed only in the state or federal courts in and for the state of Mississippi and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
Notwithstanding anything to the contrary, the Company may apply to any court of competent jurisdiction for injunctive or other equitable relief relating to the protection or enforcement of the Company’s intellectual property rights.
Any notices to the Company, including any initiation of arbitration under Section 18, must be sent to SlimWare Utilities, Inc., 2953 Bienville Blvd., Suite 566, Ocean Springs, MS 39564 to the attention of “Legal Department,” must be sent by first class registered mail or internationally recognized overnight courier and will be deemed given when received. Notwithstanding the foregoing, if the Company’s website at http://www.slimwareutilities.com indicates a newer mailing address for the Company, notices must be sent to such address as described in the foregoing sentence. The Company may send notices to you to the e-mail address provided to the Company in connection with your receipt of the Software, and are deemed given when sent.
This License Agreement is the complete and final agreement of the parties with respect to the Software and Documentation. If any part of this License Agreement is found to be void, unenforceable or invalid, that part will be deemed stricken and will not affect the validity of the other provisions. Failure by the Company to enforce any provision of this License Agreement will not be deemed a waiver of future enforcement of that or any other provision. This License Agreement may be modified only by an amendment signed by authorized representatives of both parties or by your electronic acceptance of an amendment or replacement agreement presented to you by the Company.