Before you download our software, please read our End User License Agreement. There are two buttons at the bottom of this page - one for if you accept this agreement and another for if you do not. When you accept the agreement, we will take you to a page where you can download our software. NETSECURE TECHNOLOGIES LTD. IMPORTANT! READ THIS LICENSE AGREEMENT BEFORE COPYING, INSTALLING OR USING THE NETSECURE SOFTWARE PRODUCT PROVIDED UNDER THIS LICENSE AGREEMENT (THIS “AGREEMENT”). BY COPYING, INSTALLING OR USING THE NETSECURE PRODUCT PROVIDED UNDER THIS AGREEMENT, YOU (YOU PERSONALLY, IF YOU ARE ACTING ON YOUR OWN BEHALF, OR OTHERWISE THE ORGANIZATION FOR WHICH YOU ARE AN AUTHORIZED REPRESENTATIVE) ARE INDICATING YOUR UNCONDITIONAL ACCEPTANCE OF, AND YOUR INTENTION TO BE LEGALLY BOUND TO NETSECURE TECHNOLOGIES LTD. (“NETSECURE”) BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT COPY, INSTALL OR USE THE NETSECURE PRODUCT. This Agreement is proof of license of a Netsecure product; please treat this license as valuable property; Netsecure recommends that you print a copy of this Agreement for future reference. END USER LICENSE AGREEMENT FOR NETSECURE PRODUCTS. Interpretation. In this Agreement the following terms shall have the following meanings:
Netsecure Products Covered. This Agreement applies to the following Netsecure products (“Products”):
License. Subject to the terms of this Agreement, Netsecure hereby grants Licensee a limited, personal, non-commercial, non-exclusive, non-sublicensable, non-assignable, license to download, install and use the Materials on and with Licensee’s computer, for the sole purpose of personally using the Materials. Licensee covenants not to sell, assign, rent, lease, distribute, export, import, act as an intermediary, agent or provider, or otherwise grant rights or security interests to third parties with regard to the Materials or any part thereof. Modifications. Licensee covenants not to undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse-engineering, decompiling, disassembling or hacking of the Materials or any part thereof. Third Party Technology. The Materials may be incorporated into or associated with Third Party Technology owned and controlled by third parties. Any such Third Party Technology that is incorporated into the Materials falls under the scope of this Agreement. Use of the Materials with any and all other Third Party Technology distributed or associated with the Materials is subject to Licensee explicitly entering a license agreement with the appropriate third party. Licensee acknowledges and agrees that Licensee does not hereby not enter into a contractual relationship with Netsecure or its affiliates regarding such Third Party Technology and Licensee covenants to look solely to the applicable third party (and not to Netsecure or its affiliates) to enforce any of Licensee rights in respect thereof. Exclusive Ownership. Any and all ownership, including, without limitation, ownership of all IP Rights, in and to the Materials and in and to the Netsecure Website are and shall remain the exclusive property of Netsecure. Nothing in this Agreement transfers any such rights, including any IP Rights, to Licensee nor vests any such rights in Licensee. Licensee is only entitled to the limited use of the IP Rights granted to Licensee in this Agreement. Licensee will not take any action to jeopardize, limit or interfere with Netsecure’s IP Rights. Any unauthorized use of Netsecure’s IP Rights is a violation of this Agreement and may constitute a violation of applicable intellectual property laws and treaties. All title and IP Rights in and to any Third Party Technology that is not contained in the Materials, but may be accessed through use of the Materials, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. No Removal of Notices. Licensee agree that Licensee will not remove, obscure, make illegible or alter any notices or indications of the IP Rights or Netsecure’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any Materials. Warranty. Netsecure hereby grants Licensee a 120-day (from the date of sale) limited warranty for the hardware component of the Materials. If the hardware is defective, please return it to Netsecure within 120 days of the date of sale and Netsecure will replace or repair the hardware component. Netsecure does not guarantee that the hardware will be returned within any period of time. Netsecure expressly disclaims any warranty whatsoever with respect to the software and the firmware contained in the Materials. Utilization of Licensee Computer. Licensee acknowledges that the Materials may utilize the processor and bandwidth of the computer (or other applicable device) Licensee utilizes for the limited purpose of facilitating communication between Licensee and third parties. Netsecure will use commercially reasonable efforts to protect the privacy and integrity of the computer resources (or other applicable device) Licensee is utilizing and Licensee communications; however, Netsecure does note guarantee such protection or integrity and does not give any warranties in that respect. New Versions of the Materials. Netsecure, in its sole discretion, reserves the right to add features or functions, or to provide programming fixes, updates and upgrades, to the Materials. Netsecure has no obligation to make available to Licensee any subsequent versions of the Materials. Licensee may have to enter into an amended version of this Agreement if Licensee wants to download, install or use a newer version of the Materials or a programming fix, etc. Suspension. Netsecure may, in its sole discretion and to the maximum extent permitted within Licensee jurisdiction, modify or discontinue or suspend Licensee right to use any version of the Materials and disable any Materials Licensee may already have accessed or installed without any notice to Licensee for the repair, improvement, and upgrade of the underlying technology or for any other justifiable reason, including, but not limited to, circumstances where Licensee, in Netsecure’s sole discretion, is in breach of this Agreement, creating problems, creating possible legal liabilities, or engaging in fraudulent, immoral or illegal activities, or for other analogous reasons. Lawful Purposes. Licensee covenants to use the Materials solely for lawful purposes. For greater specificity in this respect, Licensee may not, without limiting the generality of the foregoing: (a) use any type of spider, virus, worm, Trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the Materials or communications; (b) expose any third party to material which is offensive, harmful to minors, indecent or otherwise objectionable in any way; (c) use the Materials to cause or intend to cause embarrassment or distress to, or to threaten, harass or invade the privacy of, any third party; or (d) use any material or content that is subject to any third party proprietary rights or IP Rights, unless Licensee holds a license or permission from the owner of such rights. Representations Licensee represents and warrants that Licensee is authorized to enter into and comply with this Agreement. Furthermore, Licensee represents and warrants that Licensee will at any and all times fulfill Licensee’s obligations under this Agreement as well as any and all laws, regulations and policies that may apply to the use of the Materials. Indemnification. Licensee agrees to indemnify, defend, and hold Netsecure and its affiliates harmless from and against any and all liability and costs, including reasonable legal fees and expenses incurred in connection with or arising out of Licensee’s: (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, (b) violation of any rights of any third party, or (c) use or misuse of the Materials. Utilization of Licensee’s Computer. If Licensee’s use of the Materials is dependant upon the use of a processor and bandwidth owned or controlled by a third party, Licensee acknowledges and agrees that Licensee’s license to use the Materials is subject to Licensee obtaining consent from the relevant third party for such use. Licensee represents and warrants that by accepting this Agreement and using the Materials, Licensee has obtained such consent. Equitable Remedies. Licensee hereby agrees that Netsecure would be irreparably damaged if the terms of this Agreement were not specifically enforced and, therefore, Licensee agrees that Netsecure shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Netsecure may otherwise have available to it under applicable laws. Term. This Agreement will be effective as of the date of sale and will remain effective until terminated by either Netsecure or Licensee as set out below. Termination. Without limiting other remedies, Netsecure may limit, suspend, or terminate this license and Licensee’s use of the Materials with immediate effect, automatically and without recourse to the courts, if Netsecure believes, in its sole discretion, that Licensee is in breach of this Agreement, or is creating problems, creating legal liabilities (actual or potential), infringing someone else’s IP Rights, engaging in fraudulent, immoral or illegal activities, or for other analogous reasons. Netsecure shall effect such termination by providing notice to Licensee to the email address Licensee provided to Netsecure when purchasing the Product. Licensee may terminate this Agreement by returning any Product hardware to Netsecure, by deleting all Product software and firmware installed on any computer by Licensee, and by otherwise discontinuing all use of the Materials. Consequences of Termination. Upon termination of this Agreement: (a) all licenses and rights to use the Materials shall immediately terminate and revert to Netsecure; (b) Licensee will immediately cease any and all use of the Materials; and (c) Licensee will immediately remove the Materials from all hard drives, networks and other storage media and destroy all copies of the Materials in Licensee’s possession or control. New Versions. Netsecure reserves the right to change this Agreement at any time by publishing the revised Agreement on the Netsecure Website. The revised Agreement shall become effective within thirty (30) days of such publication, unless Licensee expressly accepts the revised Agreement earlier by clicking on the “accept” icon. Licensee’s express acceptance, or Licensee’s continued use of the Materials after expiry of the notice period of thirty (30) days, shall constitute Licensee’s acceptance of and agreement to be bound by the terms and conditions of the revised Agreement. Licensee can find the latest version of this Agreement at http://www.smartswipe.ca/eula. No Software or Firmware Warranties. The Netsecure Product software and firmware is provided “as is” with no warranties whatsoever. Netsecure does not make any express or implied warranties in respect of the Netsecure Product firmware or software and hereby disclaims all warranties or conditions of quality, fitness for a particular purpose, performance, and non-infringement. Netsecure further does not represent that the Netsecure Product software or firmware will be available, accessible, secure, accurate, complete and error-free, or will operate without packet loss. Netsecure also expressly disclaims all warranties on the Netsecure Product hardware, with the exception of the 60-day replacement warranty detailed above. Assumption of Risk. Licensee acknowledges and agrees that the entire risk arising out of Licensee’s use of the Materials remains with Licensee, to the maximum extent permitted by law. LIMITATIONS OF LIABILITY. THE CUMULATIVE LIABILITY OF NETSECURE AND ITS SUPPLIERS TO LICENSEE OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES, AND WITH RESPECT TO ANY CLAIMS, DEMANDS, OR ACTIONS, ARISING OUT OF OR IN RELATION TO NETSECURE PRODUCTS, THE MATERIALS, THIS AGREEMENT OR OTHERWISE SHALL NOT EXCEED THE FEES LICENSEE PAID TO NETSECURE FOR THE NETSECURE PRODUCTS. IN NO EVENT SHALL NETSECURE OR ITS SUPPLIERS BE LIABLE TO LICENSEE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOST PROFITS, INCLUDING, WITHOUT LIMITATION, DAMAGE TO OR LOSS OF ANY COMPUTER, SOFTWARE APPLICATION OR DATA BY ANY REASON (INCLUDING BY ANY VIRUS THAT MIGHT BE TRANSMITTED OR ACTIVATED VIA A NETSECURE PRODUCT), WITH RESPECT TO ANY BREACH OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHT, AND WITH RESPECT TO ANY CONTRAVENTION OF ANY LOCAL, NATIONAL OR INTERNATIONAL RESTRICTION ON THE PUBLICATION OR TRANSMISSION OF INFORMATION, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, STATUTE, STRICT LIABILITY OR OTHERWISE, EVEN IF NETSECURE OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Nothing in this Agreement shall exclude or restrict the liability of Netsecure for death or personal injury caused exclusively by the gross negligence of Netsecure, or for any liability that cannot be limited or excluded by law. Jurisdictional Limitations.As some jurisdictions do not allow some of the exclusions, disclaimers or limitations as set forth herein, some of these exclusions, disclaimers or limitations may not apply to Licensee. In such event the liability will be limited to the maximum extent possible under applicable legislation. Terms of Use. In addition to this Agreement, Licensee consents to the collection, use and disclosure of “personal information” pursuant to the Netsecure Privacy Statement available at http://www.smartswipe.ca/support/90-privacy-policy (the “Privacy Statement”) and agrees to comply with the terms of the Netsecure Terms of Use for the Netsecure Website available at http://www.smartswipe.ca/support/89-terms-of-use (the “Terms of Use”). Assignment.This Agreement, and Licensee’s rights and obligations under this Agreement, may not be transferred or assigned by Licensee without the prior written consent of Netsecure and such consent may be arbitrarily withheld by Netsecure in its sole and absolute discretion. Netsecure may at any time assign this Agreement, including any of its rights and obligations hereunder, without notice or Licensee’s prior consent. Governing Law.This Agreement shall be governed and construed in accordance with the laws of the Province of Saskatchewan, Canada, without regard to conflict of law rules. Licensee covenants and agrees with Netsecure that any dispute must be resolved before the Court of Queen’s Bench for Saskatchewan, in the Judicial Centre of Regina. Licensee hereby irrevocably attorns to the exclusive jurisdiction of the Courts of the Province of Saskatchewan. Amendment.Netsecure may, in its sole and absolute discretion, amend this Agreement from time to time, for any reason, without prior notice or liability to Licensee or to any other person; provided, however, that Netsecure will ensure that any such amendment will be made available to Licensee on the Netsecure Website. Licensee’s use of the Materials after such amendments are posted by Netsecure signifies Licensee’s acceptance of those revised terms of this Agreement. Licensee is responsible for periodically visiting the Netsecure Website to review the terms and conditions of this Agreement. Licensee may not change, modify or amend this Agreement in any manner. Netsecure Consents. No consent of or waiver by Netsecure will be effective unless in writing and signed by an authorized representative of Netsecure. Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided by the Agreement, or by law, shall not constitute a waiver of that right, power or remedy. If Netsecure waives a breach of any provision of the Agreement this shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision. Severability.If any provision this Agreement is invalid, illegal, or incapable of being enforced by reason of any rule of law or public policy, then such provision shall be severed from this Agreement and shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. All other provisions of this Agreement shall, nevertheless, remain in full force and effect and no provision shall be deemed dependent upon any other provision unless so expressed herein. Entire Agreement.The provisions herein contained constitute the entire agreement between Licensee and Netsecure, and supersede all previous communications, representations, and agreements, whether oral, written or electronic, between Licensee and Netsecure, with respect to the subject matter hereof; there being no representation, warranties, terms, conditions, undertakings, or collateral agreements (express, implied, or statutory), between the parties other than as expressly set forth in this Agreement; PROVIDED THAT in the event of any inconsistency between this Agreement and the Terms of Use, this Agreement shall prevail; PROVIDED THAT the absence from such this Agreement of a term included in the Terms of Use shall not be deemed an inconsistency. Enurement.The terms and provisions of this Agreement enure to the benefit of, and are binding upon, Licensee and Licensee’s heirs, executors, administrators, personal representatives, successors and permitted assigns, as the case may be, and upon Netsecure and its successors and assigns. If Licensee breaches any provision of this Agreement, Licensee may no longer use the Materials. In the event of any termination of this Agreement, this Agreement will nevertheless continue to apply and be binding upon Licensee in respect of Licensee’s prior use of the Materials. All provisions of this Agreement that by their nature are intended to continue after the termination of this Agreement shall survive and continue after such termination. The foregoing terms and conditions were last amended on 01 October 2008. Copyright © 2008. All rights reserved. LICENSEE EXPRESSLY ACKNOWLEDGES THAT LICENSEE HAS READ THIS AGREEMENT AND UNDERSTANDS THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE “ACCEPT” ICON OR OTHERWISE INSTALLING AND USING THE NETSECURE PRODUCT SOFTWARE, HARDWARE OR FIRMWARE, LICENSEE EXPRESSLY AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND TO GRANT TO NETSECURE THE RIGHTS SET FORTH HEREIN.
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