License Agreement

License and Services Agreement for Awareness Technologies, Inc. InterGuard

IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AND TESTING AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE INTERGUARD SERVICE (AS DEFINED BELOW). AWARENESS TECHNOLOGIES, INC. AND/OR ITS SUBSIDIARIES (“ATI”) IS WILLING TO LICENSE THE SOFTWARE TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SERVICE (REFERENCED BELOW AS “YOU” OR “YOUR” OR "CUSTOMER") ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND ATI. BY PROVISIONING AND ACTIVATING THE SERVICE, CLICKING THE “I AGREE” OR “YES” BUTTON OR OTHERWISE INDICATING CONSENT ELECTRONICALLY, OR INSTALLING THE AGENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK THE “CANCEL” OR “NO” BUTTON OR OTHERWISE INDICATE REFUSAL AND MAKE NO FURTHER USE OF THE SERVICE.

BY ACCEPTING THIS AGREEMENT, YOU AGREE TO ONLY INSTALL THIS SERVICE ON A COMPUTER YOU ARE AUTHORIZED TO INSTALL IT ON. YOU ALSO AGREE TO COMPLY WITH ANY AND ALL LAWS IN YOUR COUNTRY AND/OR STATE GOVERNING REQUIREMENTS ABOUT INFORMING USERS OF A COMPUTER WITH THE SERVICE INSTALLED.

INTERGUARD Service is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Service is licensed, not sold.

  • Definitions
  • When used in this Agreement, the following terms shall have the specific meaning shown unless the context of any provision hereof clearly indicates otherwise.

    • "Service" shall mean collectively, the Client Software and the Server Software, each in machine readable (object code) form only, and associated media, printed materials, and "online" or electronic documentation, if any, supplied by ATI.
    • "Server Software" shall mean the computer software that provides services or functionality on computers capable of running the Server Software (each such computer, a "Server").
    • "Client Software" shall mean the computer software that allows an electronic device to access or utilize the Server Software.
    • "Module" shall mean the type of monitoring component purchased. Modules include, but are not limited to InterGuard Bundles, Employee Monitoring, Web Filtering, Data Loss Prevention, Laptop Recovery, etc.
    • "Effective Date" shall mean the date which the InterGuard Service was provisioned.
    • "Order Form" shall mean the document provided by ATI and agreed to by the parties hereto, by which Customer orders licenses and services.
    • "Statement of Work" shall mean the document provided by ATI and agreed to by the parties hereto, by which Customer orders consulting and other services.
  • Grant of License.
    • This Software is licensed to be installed and used on only one device. A valid license must be purchased for each device on which the Software is to be installed. This Agreement grants you a non-exclusive, non-transferable license for the internal use only of the Service and any error corrections provided by ATI for the number of users set forth on the applicable Service Order Form. For each license you acquire, you may use the Server Software on a single Server and you may use the Client Software on that number of devices which does not exceed the number of licenses for the Client Software set forth on your Service Order Form. If YOU install the Client Software on a computer that allows more than one person to simultaneously access the computer at the same time, the Software must be licensed as a Terminal Server. Terminal Server licensing requires that a license be purchased for each person utilizing the Terminal Server. ATI reserves the right to suspend service to any account if it determines, at its sole discretion, that the USER has installed the Service on a computer that should have been licensed as a Terminal Server.

      Additionally, you must limit the use of the Client Software to the type and number of licenses of each module purchased. Such Client Software licenses shall be exclusively for use with a designated Server. If You are utilizing ATI's server to run Server Software, you will have the option to pay for additional services including SmartCamera Snapshots, Extended Data Storage and Data Backup Services.
    • You may copy the Service for archival or backup purposes; no other copies shall be made without ATI's prior written consent. All titles, trademarks, and copyright and restricted rights notices shall be reproduced in such copies. All archival and backup copies of the Service are subject to the terms of this Agreement.
    • Restrictions on use. You may not and you may not permit others to:
      • Rent, lease, lend or transfer the Service, except as set forth in a separate written agreement with ATI;
      • Cause or permit any person to reverse engineer, decompile or disassemble the Software (except where explicitly permitted by law and then only after receiving express, written permission from ATI;
      • Use the Service in connection with a service bureau, commercial time-sharing or other configuration whereby any third party may use the Software, except as set forth in a separate written agreement with ATI;
      • Create or develop any program or software capable of communicating with the Client Software and/or the Server Software (except where explicitly permitted by law and then only after providing ATI with thirty (30) days' prior written notice explicitly describing such action).
      • Transfer licenses to, or sublicense, the Service to any third party; or Copy or use the Software except as specified in this Agreement or a Service Order Form. Use or allow others to use the Server Software or any Server in such a manner as to permit additional users (beyond the number stated in the Order Form) to use the Service.
    • Ownership. ATI retains all right, title and interest in the Service and in all copies, improvements, enhancements, modifications and derivative works of the Software including without limitation all rights to patent, copyright, trade secret and trademark.
    • Support Services. ATI may provide you with technical or other support services ("Support Services") related to the Service, as set forth on the applicable Order Form and under the terms of this Agreement. Use of Support Services is governed by ATI policies and programs in effect as of the date on which such Support Services are ordered by Customer. Any technical information you provide to ATI as part of the Support Services may be used by ATI for its business purposes, including for product support and development. ATI will not use any such technical information in a manner that personally identifies Customer.

      ATI's Support Services are limited to ATI's products. Customer assumes sole responsibility for supporting all other information technologies; e.g. Computer Networks, Databases, Applications, etc.
    • Professional Services. ATI may provide you with consulting and training or other professional services ("Professional Services") related to the Service, as set forth on the applicable Statement of Work and under the terms of this Agreement. All Professional Services shall be billed on a time and materials basis unless the parties expressly agree otherwise in writing. Any Professional Services acquired from ATI shall be bid separately from the Service licenses and/or Support Services, and you may acquire either Service licenses/Support Services or Professional Services without acquiring the other.
  • Warranties
    • NO WARRANTIES. THE SOFTWARE IS PROVIDED "AS IS". THERE ARE NO WARRANTIES ON THE SERVICE, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND ATI EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ATI DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.
  • Limitation of Liability. IN NO EVENT WILL ATI, ITS LICENSORS (IF ANY), EMPLOYEES, SHAREHOLDERS, AFFILIATES, PARTNERS, OFFICERS, DIRECTORS, SUBSIDIARIES, PARENTS OR AGENTS BE LIABLE FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR LOSS OF DATA, FOR ANY REASON WHATSOEVER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF ATI HAS BEEN WARNED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT SHALL ATI'S LIABILITY FOR DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100.00).
    • Limitation. Except as otherwise specifically provided in this Limitation of Liability section, regardless of the legal basis of your claim, ATI's liability will be limited, to the maximum extent permitted by applicable law, to direct damages up to the amount you have paid for the Software.
    • No Liability for Certain Damages. To the maximum extent permitted by applicable law, neither ATI nor any of its affiliates or suppliers will be liable for any indirect damages (including without limitation incidental, extraordinary, exemplary, incidental, consequential, special or punitive damages, damages for loss of profits or revenues, business interruption, loss of business information or loss of use of business information).
    • Application. The limitations on and exclusions of liability in this Agreement apply regardless of whether liability is asserted on the basis of contract, tort (including negligence or strict liability), breach of warranty or any other legal theory.
  • Right to Audit. ATI reserves the right, upon prior notice to you, to audit usage of the Service at your premises during normal business hours to verify your compliance with the terms of this Agreement. If use not authorized by this Agreement is found, you agree to cease such use immediately upon receipt of written notification, or to promptly purchase additional licenses for the Service, as the case may be, such that the total of all purchased licenses reflects the actual number of devices. By invoking the rights and procedures described herein, ATI does not waive its rights to enforce this Agreement or to protect its intellectual property by any other means permitted by law.
  • Critical Systems. The technology that is included in the Service 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, including without limitation 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 technology or the Software could lead directly to death, personal injury, or severe physical or environmental damage. You warrant that you will not use or redistribute the Software for such purposes.
  • Third Party Content. Any message, data, information, images, software, text or other material ("Content") accessed on or through the Service is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You may not use or distribute any Content accessed through the Service without the authorization of the owner of such content. You agree not to download, access, modify, copy, reproduce, republish, upload, post, transmit, sell or distribute Content accessed through the Service in violation of applicable copyright and other intellectual property laws. Nothing in this Agreement grants you any license or right, title or interest in or to any Content. You are responsible for adhering to the license agreements of any third parties that provide Content accessible through the Service. You agree to comply with any additional licensing terms, copyright notices, information or restrictions applicable to any Content accessed through the Service.
  • Compliance Verification. You shall keep all usual and proper records relating to the reproduction and distribution of the Service pursuant to this Agreement. ATI reserves the right to request that you conduct an internal audit at any time on or prior to the first anniversary of the most recent date of purchase of licenses for the Service. Following any such audit, you shall deliver to ATI a certified statement in writing signed by your authorized representative, that you either (i) have sufficient licenses to permit all usage disclosed by such audit or (ii) verify that you have ordered sufficient licenses to permit all usage disclosed by such audit.
  • Term and Termination
    • Term. If not otherwise specified on the Service Order Form or Statement of Work, as applicable, each Service license granted under this Agreement shall remain in effect so long as Customer has paid its Renewal Fees in a timely manner unless the license is terminated as provided in sections titled Termination by Customer or Termination by ATI. So long as the Customer has not terminated the subscription, on the anniversary date of each order placed by the Customer, ATI will charge the Customer's payment information on file for the Renewal Fees.
    • Termination by Customer. Customer may terminate the Service license at any time upon thirty (30) days prior written notice; however, termination shall not relieve Customer of its obligations specified in section titled Effect of Termination. The Customer is obligated to pay any remaining fees through the end of the subscription term.
    • Termination by ATI. ATI may terminate this Agreement or any license upon written notice if Customer breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying such breach.
    • Effect of Termination. Termination of this Agreement or any license shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer's obligation to pay all fees that have accrued or are otherwise owed by Customer under any Service Order Form, Statement of Work, or other similar ordering document under this Agreement. Termination by the customer prior to the end of the Term shall in no way entitle the customer to a refund of any portion of the amounts owed to or paid to ATI. The parties' rights and obligations under sections titled Restrictions on Use, Ownership, Warranties, Limitation of Liability, Third Party Content, Term and Termination, Payment Provisions (to the extent that payments remain due upon termination) Protection and Security of Service and Marketing shall survive termination of this Agreement.
    • Termination of License. If a license granted under this Agreement expires or otherwise terminates, Customer shall (a) cease using the Service, and (b) certify to ATI within one month after expiration or termination that Customer has destroyed or returned to ATI the Software, if applicable, and all copies. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or merged into other materials.
  • Payment Provisions
    • Invoicing and Payment. Invoices for payment of license fees shall be payable fifteen (15) days from the Effective Date. Unless otherwise provided on the Service Order Form or Statement of Work, as applicable, fees for Services shall be payable annually in advance, thirty (30) days prior to the renewal date, at the applicable rate set forth on the Service Order Form or Statement of Work. All other fees shall be payable fifteen (15) days from the invoice date, and shall be deemed overdue if they remain unpaid thereafter. Any amounts payable by Customer hereunder which remain unpaid after the due date shall be subject to a late charge equal to the lesser of (a) 1.5% per month or (b) the maximum amount permitted by law, in either case from the due date until such amount is paid. Customer agrees to pay applicable media and shipping charges. Customer shall issue a purchase order, or alternative document acceptable to ATI, on or before the Effective Date of the applicable Service Order Form or Statement of Work.
    • Taxes. All fees and payments listed on the Service Order Form or Statement of Work, as applicable, are exclusive of all taxes, duties or levies, however designated or computed. Customer shall be responsible for and shall pay any taxes due in connection with the licenses granted in this Agreement or Customer's use of the Service or any software, including without limitation sales, use, property, value-added or other taxes, exclusive of taxes based upon ATI's net income.
  • Protection and Security of Service
    • Protection of Confidential Information. Customer will not provide, disclose or otherwise make available to any third party (i) any information or data received from ATI pertaining to the Service which ATI notifies Customer is considered confidential by ATI; and (ii) all training and procedural materials developed by ATI in conjunction with the use or provisioning/activation of the Service by Customer (collectively, "Confidential Information"). Except as expressly provided herein, Customer will not disclose or use such Confidential Information without ATI's prior written consent, except to Customer's employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as Customer's obligations under this Section. In addition to the foregoing nondisclosure obligations, Customer agrees to use at least the same care and precaution in protecting such Confidential Information as Customer uses to protect Customer's own confidential and proprietary information and trade secrets, and in no event less than reasonable care. Customer shall return all Confidential Information promptly upon the request of ATI or upon termination of this Agreement.
    • Equitable Remedy. Customer acknowledges that due to the unique nature of ATI's Confidential Information, ATI will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of ATI's Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, ATI shall be entitled to obtain any injunctive relief that may be appropriate to prevent such unauthorized use or disclosure.
    • Term of Nondisclosure Obligations. Customer's obligations set forth in this Section will survive and continue for a period of ten (10) years after the termination of this Agreement, and will bind Customer's representatives, successors and assigns, if any; provided, however, that such obligations will terminate with respect to any Confidential Information which becomes available for unrestricted public use through no fault of Customer.
  • Marketing. Customer hereby agrees that ATI may use, publish, disclose and incorporate in promotional material Customer's name and status as a customer of ATI, and any portion of any feedback, in any form, including, but not limited to, quotations of written and/or oral commentary relating to the Service and Customer's name and/or the name(s) of the individuals quoted, submitted by Customer to ATI.
  • General
    • Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut, notwithstanding any conflict of laws provisions to the contrary. ATI and Customer agree to submit to the jurisdiction and venue of the state courts located in Fairfield County and the federal courts located in the City of Stamford.
    • Legal Remedies: Any controversy or claim arising out of or relating to this Agreement shall be determined by small claims court or arbitration by the party initiating the legal action. If the claim exceeds the limits of small claims, then resolution of a claim or controversy shall be limited to arbitration in accordance with the Arbitration Rules of the American Arbitration association or JAMS. The place of arbitration or the venue of any small claims court case shall be limited to the cities of Stamford or Hartford, Connecticut and when applicable, use Connecticut Governing Law. The prevailing party in any such legal claim, whether in a court or by arbitration, will be entitled to recover its full legal costs from the losing party.
    • Notices. All notices required pursuant to this Agreement shall be in writing and shall be deemed to have been given when mailed by first class mail to the first address listed in the relevant Service Order Form or Statement of Work (if to Customer) or to the ATI address on the Service Order Form or Statement of Work (if to ATI). Customer agrees that ATI may treat documents faxed by Customer to ATI as original documents; provided, however, that either party may require the other to exchange original signed documents.
    • Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
    • Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for non-payment or breach of ATI's proprietary rights in the Software, no action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has occurred.
    • Export. You acknowledge that the Service is of U.S. origin. You agree that neither you nor your customers intends to or will, directly or indirectly, export or transmit the Service or related documentation and technical data to any country to which such export or transmission is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other governmental entity as may have jurisdiction over such export or transmission.
    • Independent Contractor. Each party is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
    • Assignment. Neither this Agreement nor Customer's rights hereunder shall be assigned, sublicensed or transferred without ATI's prior written consent. This Agreement shall be binding upon and inure to the benefit of and be enforceable by both parties' respective successors and permitted assigns.
    • Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. ATI reserves the right to modify this agreement, without notice, at any time. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement. It is expressly agreed that the terms of any Service Order Form or Statement of Work, as applicable, shall supersede the terms of this Agreement and that this Agreement shall supersede the terms in any Customer purchase order or other ordering documents. This Agreement shall also supersede the terms of any shrinkwrap, click-through or break-the-seal license agreement included in any package or downloadable version of ATI-furnished software, except terms contained in such license agreement that grant specific use rights for the Service.