END USER LICENSE AGREEMENT FOR USE OF COMPLIANCE FORGE, LLC PRODUCTS
NOTICE TO ALL USERS: BEFORE YOU CLICK ON THE "I ACCEPT" BUTTON, CAREFULLY READ THE FOLLOWING OSTENDIO, INC. (“OSTENDIO”) END USER LICENSE AGREEMENT ("AGREEMENT") WHICH SETS FORTH AND GOVERNS THE TERMS AND CONDITIONS UNDER WHICH YOU MAY DOWNLOAD AND USE THE COMPLIANCE FORGE, LLC (“COMPLIANCEFORGE” OR “LICENSOR) PRODUCTS (THE “PRODUCTS”) PROVIDED BY OSTENDIO AND/OR ITS LICENSOR.
THIS AGREEMENT IS LEGALLY BINDING ON YOU AND ANY LEGAL ENTITY YOU IDENTIFY OR PERSON ACCESSING OR USING ANY PRODUCT (COLLECTIVELY THE "USER" OR “LICENSEE”). BY CLICKING THE "I ACCEPT" BUTTON, USER SIGNIFIES THAT USER HAS READ, UNDERSTANDS, AND AGREES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK THE "I ACCEPT" BUTTON AND DO NOT COPY, INSTALL, ACCESS OR USE ANY PRODUCT.
IN THE EVENT THAT YOU LIST A LEGAL ENTITY AS THE USER, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE LEGAL ENTITY TO THESE TERMS AND THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS OR DO NOT HAVE THE AUTHORITY AS PROVIDED HEREIN, DO NOT CLICK THE "I ACCEPT" BUTTON AND DO NOT COPY, INSTALL, ACCESS OR USE ANY PRODUCT.
In consideration of the mutual promises set forth herein, Ostendio and User, intending to be legally bound, hereby agree as follows:
1. TERMS OF LICENSE AND OTHER CONDITIONS.
1.1 License to Use Products. Subject to User’s compliance with the terms and conditions of this Agreement, Ostendio grants User a personal, limited, revocable, non-exclusive, non-transferable, non-assignable, non-resalable, license, without right of sub-license, to download and use the Products through your Company’s Ostendio account (the "License"). All rights not specifically granted under this Agreement are reserved by Ostendio and/or its Licensor. The Products are licensed, not sold. User’s license confers no title or ownership in or to the Products and should not be construed as a sale of any rights in or to the Products. Ostendio is not obligated to provide any customer service or support in conjunction with the License and/or use of the Products.
1.2 Restrictions on Use. User shall not, directly or indirectly: (a) sell, rent, lease, license, distribute or otherwise transfer or exploit any of the Products without the express prior written consent of Ostendio; (b) create or enable the creation of derivative works, modifications, or adaptations of the Products; (c) distribute or disclose the Products to third parties; (e) remove, circumvent, or modify any copyright, trademark, or other proprietary marking or restrictive legends placed on any of the Products; or (f) use any of the Products in violation of any applicable statute, law, restriction, and/or regulation.
1.3 Product Changes. Ostendio and/or its Licensor might change and/or approve any of the Products from time to time in in its or their sole discretion. Accordingly, User acknowledges and agrees that the any or all of the Products may change from time to time. If User does not agree with any changes to the Products, User may terminate this Agreement at any time by ceasing to use the Products.
1.4 Unsolicited Ideas. Ostendio does not solicit or accept unsolicited proposals or ideas, including, without limitation, ideas for new products, product feedback, and product improvements (“Unsolicited Feedback”). If User sends any Unsolicited Feedback to Ostendio through any means, User acknowledges and agrees that any such Unsolicited Feedback shall be deemed to be in the public domain and Ostendio and its Licensor shall not be under any obligation of confidentiality or ownership with respect to the Unsolicited Feedback.
2. USER RESPONSIBILITIES.
2.1 User Responsible for Products Suitability for Intended Use. User assumes full responsibility for the selection of the Products its accesses and/or uses to achieve User’s intended results, and for the access to, installation, use of, and results obtained from the Products. User shall take all reasonable precautions to prevent unauthorized or improper access to and use of User’s account as well as access to the Products.
2.2 User Assumes Full Liability. User is responsible for User’s use of the Products and User accepts full responsibility and liability for such use. The Products provided under the License may be used for any lawful purpose. User agrees not to utilize the Products for any unlawful purpose. User shall not use the Products. Ostendio, in its sole discretion, may terminate the License and this Agreement immediately and without prior notice if User violates any of the above restrictions or breaches this Agreement in any manner.
2.3 User Must Comply with All Laws. User, on behalf of itself and all users at User’s location agrees to abide by all rules and regulations, including the exportation of data from the United States and other applicable jurisdictions. With respect to User’s use of the Products, User shall be responsible for any claim or damage arising from or related to infringement or unauthorized use of any third party copyright, trademark, trade name, service mark, or any other intellectual property right.
3. No Liability for Third Party Networks and Links. The Products may be used on third party networks that Ostendio does not own or control. In addition, the Products may contain links to third party websites, advertisers, services, and/or special offers that are not owned or controlled by Ostendio. Ostendio does not endorse or assume any responsibility for any such third party networks, sites, information, materials, products, or services. If User accesses and/or uses any third party website, service, and/or content, User does so at User’s own risk and User agrees that Ostendio will have no responsibility or liability whatsoever arising from User’s use of the Products with a third party network or use of or access to any third party website, information, material, product, service, and/or content.
4. OWNERSHIP RIGHTS. The Products are owned by Ostendio and/or its Licensor and are protected by United States copyright laws and international treaty provisions. You may not remove the copyright notice from any copy of the Products, if any, accompanying the Products. The Products are the exclusive property of Ostendio or its Licensor. Ostendio and and/or its Licensor shall retain all right and title, to the extent of their respective interests, in and to all proprietary rights in and to the Products and to any other intellectual property owned or otherwise provided by Ostendio. User shall have no right to use the Products for any purpose other than as specifically set forth in this Agreement.
5. TERM AND TERMINATION.
5.1 Term. The term of the Agreement (the "Term") shall commence on the date that User accepts this Agreement by clicking the "I ACCEPT" button for this Agreement, and shall continue in full force and effect until terminated.
5.2 Termination by User. User may terminate this Agreement at any time by no longer using the Products.
5.3 Termination by Ostendio. Ostendio may terminate this Agreement including the License at any time with or without cause and with or without notice to User (if written notice is given in Ostendio’s sole discretion, such notice may be sent by email).
5.4 Effect of Termination. Upon the termination of this Agreement for any reason, the License and all rights granted by Ostendio under this Agreement shall immediately cease and User shall immediately cease any use of the Products upon such termination.
5.5 Injunction. Because Ostendio and/or its Licensor would be irreparably damaged if the terms of this Agreement were not specifically enforced, User agrees that Ostendio and/or its Licensor shall be entitled, without bond, other security, or proof of damages, to appropriate equitable relief and remedies with respect to any breach of this Agreement, in addition to all other rights, relief, and remedies as Ostendio and/or its Licensor may otherwise have under applicable laws.
6. LIMITATION OF LIABILITY.
6.1 Limitation on Liability. IN NO EVENT WILL OSTENDIO OR ITS LICENSOR, AND/OR ANY PERSON OR ENTITY CONTROLLING, CONTROLLED BY, OR UNDER COMMON CONTROL WITH OSTENDIO OR ITS LICENSOR, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, MANAGERS, CONTRACTORS, ATTORNEYS, OR AGENTS (EACH AN "OSTENDIO PARTY" AND, COLLECTIVELY, THE “OSTENDIO PARTIES”) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGE ARISING FROM OR RELATED TO LOST PROFITS OR REVENUE, LOSS OF DATA OR INFORMATION, LOSS OF USE OF THE PRODUCTS, BUSINESS INTERRUPTION OR DELAY, DAMAGE TO REAL OR PERSONAL PROPERTY, LOSS OF BUSINESS REPUTATION OR GOODWILL, USE AND/OR MALFUNCTION OF THE PRODUCTS, COSTS OF SUBSTITUTE PRODUCTS, AND/OR DOWNTIME COSTS AND THIS AGREEMENT, AND/OR THE TERMINATION OF THIS AGREEMENT, WITH OR WITHOUT REASON. THIS LIMITATION OF LIABILITY SHALL APPLY TO ANY AND ALL THEORIES OF LIABILITY, WHETHER ARISING UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, EVEN IF OSTENDIO AND/OR ITS LICENSOR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
6.2 $100 Maximum Liability. IF, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, OSTENDIO AND/OR ITS LICENSOR IS FOUND TO BE LIABLE TO USER OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGE OR LOSS THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED TO USER’S USE OF THE PRODUCTS AND/OR THE LICENSE, THE AGGREGATE TOTAL LIABILITY OF ALL OSTENDIO ENTITIES, ON A COMBINED BASIS, FOR ANY DAMAGES FOR ANY CAUSE OF ACTION WHATSOEVER DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE PRODUCTS, AND/OR THE LICENSE, AND REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO ONE HUNDRED UNITED STATES DOLLARS (US$100). SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO, SUBJECT TO APPLICABLE LAW, THIS LIMITATION MAY NOT APPLY TO USER.
6.3 No Liability for Technical Support. OSTENDIO SHALL NOT BE LIABLE FOR THE ACCURACY OF ANY INFORMATION PROVIDED BY OSTENDIO OR THIRD PARTY TECHNICAL SUPPORT PERSONNEL, OR ANY DAMAGES CAUSED, DIRECTLY OR INDIRECTLY, BY ACTS TAKEN OR OMISSIONS MADE BY USER OR ANY OTHER PARTY AS A RESULT OF ANY SUCH TECHNICAL SUPPORT PROVIDED BY OSTENDIO OR ANY THIRD PARTY.
6.4 THE FOREGOING PROVISIONS SHALL BE BINDING AND ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7. INDEMNITY. User shall, at User’s expense, indemnify, defend, and hold Ostendio, its Licensor, and all Ostendio Parties harmless from and against any claim, suit, proceeding, dispute, demand, liability, damage, loss, cost, and expense, including, without limitation, reasonable legal fees (including costs of defense of claims, suits or proceedings brought by third parties), in any way related to User’s gross negligence, willful misconduct, violation of law, and/or any infringement of Ostendio’s or any Licensor’s intellectual property rights.
8. REPRESENTATIONS AND WARRANTIES.
8.1 User Warranty. User represents and warrants that User shall not use the Products in any manner which infringes upon or violates any patent, copyright, trademark, trade secret, or other proprietary right or any contractual right of any third party. User further represents and warrants that User is duly authorized to enter into this Agreement and make the commitments set forth in this Agreement.
8.2 Ostendio Warranty Disclaimers. USER UNDERSTANDS AND AGREES THAT THE PRODUCTS AND ANY OTHER TECHNOLOGY, MATERIALS, AND INFORMATION OFFERED AND/OR PROVIDED BY OSTENDIO, ITS EMPLOYEES, AGENTS, LICENSOR, OR CONTRACTORS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SUBJECT TO APPLICABLE LAW, OSTENDIO, ITS LICENSOR, AND ANY THIRD PARTY SERVICE PROVIDERS, SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ALL WARRANTIES OF ANY KIND TO USER AND OTHER THIRD PARTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY AND ALL WARRANTIES OF PERFORMANCE, ANY AND ALL WARRANTIES OF FREEDOM FROM ERRORS OR DEFECTS, ANY AND ALL WARRANTIES OF NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING, OR TRADE USAGE. OSTENDIO MAKES NO REPRESENTATION OR WARRANTY AS TO THE TIMELINESS, SECURITY, PERFORMANCE, RESULTS, ACCURACY, OR COMPLETENESS OF THE PRODUCTS AND/OR ANY INFORMATION CONTAINED IN OR ACCESSED BY OR THROUGH THE PRODUCTS, OR AS TO THE RESULTS TO BE ATTAINED BY USER OR ANY THIRD PARTY FROM ACCESSING AND/OR USING THE PRODUCTS. OSTENDIO ALSO DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, ERRORS, OMISSIONS, AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO USER’S USE OF THE PRODUCTS. EXCEPT FOR OSTENDIO’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, USER ASSUMES TOTAL RESPONSIBILITY AND ALL RISKS FOR USER’S USE OF THE PRODUCTS INCLUDING, BUT NOT LIMITED TO, ANY INFORMATION OBTAINED THEREON. USER’S SOLE REMEDY AGAINST OSTENDIO FOR DISSATISFACTION WITH THE PRODUCTS IS TO STOP USING THE PRODUCTS. THIS WARRANTY DISCLAIMER AND LIMITATION OF RELIEF ARE PART OF THE BARGAIN BETWEEN THE PARTIES. USER HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES MADE BY OSTENDIO, ITS EMPLOYEES, AGENTS, LICENSOR, OR CONTRACTORS. SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THIS EXCLUSION MAY NOT APPLY TO USER. THE FOREGOING WARRANTY DISCLAIMER SHALL BE ENFORCEABLE AND BINDING TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8.3 Updates. OSTENDIO IS NOT OBLIGATED TO PROVIDE ANY UPDATES, UPGRADES, OR TECHNICAL SUPPORT FOR THE PRODUCTS.
9. EXPORT CONTROLS AND ASSURANCES. User understands that the Products and Documentation are subject to regulation by agencies of the United States Government as well as applicable laws and regulations of other countries which prohibit export, importation or diversion of certain technological products or services to certain countries and individuals. User hereby specifically agrees to comply in all respects with such export, re-export, and/or import restrictions, and not to export or allow the re-export of the Products except with all necessary export licenses and approvals. User shall not violate any provisions of U.S. export laws including exporting to any country to which the U.S. has embargoed goods or to anyone on the U.S. Department of the Treasury list of Specially Designated Nations or the U.S. Department of Commerce's Table of Denial Orders. By using the Products, User agrees to the foregoing provisions and User is certifying that User is not located in, under the control of, or a national or resident of any such country or on any such list.
11.1 Assignment. This Agreement may not be assigned in whole or in part by User without the prior written consent of Ostendio, and any attempt to assign any rights, duties or obligations which arise under this Agreement without such written consent shall be null and void.
11.2 Governing Law. This Agreement and any claim, controversy, right, obligation, or dispute arising under or related to this Agreement, the relationship of the parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the parties shall be governed by and construed in accordance with the laws of the State of Virginia, United States of America (USA), without regard to conflict of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to this Agreement. The parties irrevocably and unconditionally agree to the exclusive jurisdiction of the state courts in Arlington County, Virginia, USA and the federal court in Alexandria, Virginia, USA. Ostendio and User each waive any jurisdictional, venue, or inconvenient forum objections to such courts. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement and/or the provision or use of the Products.
11.3 Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all existing agreements relating to the subject matter hereof.
11.5 No Waiver. Neither this Agreement nor any provision hereof may be waived except by written agreement signed by both parties. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial waiver of any right under this Agreement constitute any other or further or future waiver of any other right.
11.4 Notices. All notices and other communications required or permitted under this Agreement shall be in writing and sent by electronic mail (email), facsimile, express or overnight delivery service, or by certified mail, postage prepaid, return receipt requested.
11.5 Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable by any court, government agency, or entity having legal jurisdiction, such illegality, invalidity or unenforceability shall apply only to such provision and shall not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and that provision and this Agreement generally shall be reformed, construed and enforced to the extent necessary so as to most nearly give lawful effect to the intent of the parties as expressed in this Agreement.
11.6 Independent Contractors. The relationship between the parties is that of independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created between the parties by this Agreement, the License, and/or or access to or use of any of the Products. Neither party will have the power to bind the other or assume or create any obligations, express or implied, on the other party’s behalf without the other party’s prior written consent.
11.7 Third Party Beneficiaries. Ostendio may use or rely on one or more licensors and/or service providers whose products and/or services are incorporated into, provided in conjunction with, or licensed with, the Products provided by Ostendio, and each such licensor and service provider is expressly made a third party beneficiary under this Agreement. Such licensor and service provider shall have the right to enforce the terms and conditions of this Agreement respecting any terms affecting such licensor and/or service provider as if such licensor or service provider (whether a person, company, or entity) were a party to this Agreement. Except as set forth in this Section, the parties intend that there shall be no third party beneficiaries under this Agreement, and that no person, company or entity, except the parties, shall have any rights or remedies under this Agreement, including the right to bring any action on account of its breach or in any relation to it whether in contract, in tort, or otherwise.
11.8 Headings. The headings preceding the various paragraphs and subparagraphs of this Agreement are intended solely for the convenience of the parties and shall not be deemed relevant in the construction of this Agreement or its terms.
11.9 Survival. The obligations under Sections 1, 2, 3, 4, 6, 7, 8, and 11 shall survive the termination or expiration of this Agreement for any reason.
11.10 Amendment. No addition to, removal or modification of any of the provisions of this Agreement will be binding upon Ostendio unless made in writing and signed by an authorized representative of Ostendio. Notwithstanding the foregoing sentence, Ostendio reserves the right, at its sole discretion, to modify this Agreement at any time, including any terms and conditions, and User agrees to be bound by any such amendment or modification. Any modification and/or amendment to this Agreement will be posted on the Ostendio website and/or communicated to User by Ostendio and the effective date of any such modification and/amendment will be disclosed in the notice. User is responsible for reviewing and becoming familiar with any such modifications (including new terms and conditions) ("Additional Terms") posted on the Ostendio website and/or communicated to User by Ostendio. All Additional Terms are hereby incorporated into this Agreement by this reference and User’s continued use of any of the Products will indicate User’s acceptance of and agreement to be bound by the Additional Terms. If User does not agree to any of the Additional Terms, User shall immediately stop using the Products.
11.11 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns and any person who uses the Products under User’s account.
11.12 Miscellaneous. This Agreement and any Additional Terms will be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there will be no presumption or inference against the party drafting this Agreement in construing or interpreting any of the provisions contained in this Agreement. The parties hereto confirm that they have agreed that this Agreement and related documents be drafted in English. English shall be the governing language of this Agreement and any translation of this Agreement into any other language shall be secondary to the original English version.