End-User License Agreement
This END-USER LICENSE AGREEMENT (“EULA”) is by and between the individual who is utilizing and/or has purchased a NetAlly, LLC device (“Device”). This EULA provides the terms, conditions, rights, and restrictions for which NetAlly, LLC and any of its subsidiaries and affiliates (collectively or individually referred to as “NetAlly”) is willing to sell any such Device and license the use of NetAlly’s proprietary software, which includes but is not limited to the firmware residing Devices (“Software”) (hereinafter the Device and Software may be collectively referred to as the “Product(s)”), and provide Services to End-User. NetAlly’s provisioning of Products, and/or Services to End-User is expressly contingent upon End-User’s acceptance of this EULA, “AS IS”.
“AllyCare Services” means the optionally purchased Maintenance Services, which an End-User may purchase hereunder which can be reviewed at https://www.netally.com/allycare-enabled/.
“AUP” means the Acceptable Use Policy published by NetAlly governing the permitted uses of any Services provided hereunder, for which NetAlly may update from time-to-time and can be reviewed at https://www.netally.com/web-legal/.
“Consumer” means an End-User who utilized the Product or received the Service not in furtherance of a trade, profession, or for business purposes.
“Data” means information that the End-User uploads or uses in conjunction with the use of the Products.
“Data Protection Act” means the Health Information Portability and Accountability Act (HIPAA) (29 U.S. Code § 1181, et seq.), Gramm Leach Bliley Act (GLBA) (15 U.S Code § 1681), General Data Protection Regulation (GDPR) (EU 2016/679), and other applicable regulations which seek to protect the processing and storage of personal information.
“Documentation” means any installation guides, reference guides, operation manuals and release notes provided with the Product in printed, electronic, or online form.
“Evaluation Product” means software that contains a license key which disables the Software after thirty (30) calendar days, or other term as agreed to by the parties.
“Maintenance Services” &/or “Maintenance” means the support services for the Products, including but not limited to the AllyCare Services, provided by NetAlly to End-User.
“Personal Data” means any information relating to an identified or identifiable natural person (hereafter a “Data Subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.
“Portal” shall mean the URL(s) hosted by NetAlly used to communicate, provided Maintenance Services, Software updates, and upgrades to the End-User.
“Services” means the AllyCare Services and Maintenance Services as well as any other services offered by NetAlly to End-User from time to time.
2. License Grant & Restrictions: Subject to payment of the applicable license fee and the terms set forth in an applicable Order, NetAlly grants End-User a limited, non-exclusive, non-transferable, revocable license to use the Software and the Documentation for End-User’s own internal business purposes.
(a) License Restrictions. Except as required by law, End-User will not, and will not cause or permit others to, derive the source code of the Software, or reverse engineer, disassemble, or de-compile the Products. End-User may not (i) create derivative works of the Software, (ii) lend, rent, lease, assign, sublicense, and/or make available through timesharing or service bureau the Software, or (iii) transfer the Software or provide third party access to the Software.
(c) Ownership. NetAlly and its third-party licensors retain all right, title, and interest in and to the Products and Third-party Technology. End-User retains all right, title and interest in and to the Data.
(d) Improper Use. End-User acknowledges and agrees that the Product and Services are not intended or suitable for use in situations or environments where the failure or time delays of, or errors or inaccuracies in, the content, data or information provided by NetAlly could lead to death, dismemberment, personal injury, or physical or environmental damage, including without limitation the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, life support or weapons systems.
3. Acceptable Use: End-User specifically agrees to limit the use of the Products and/or Services to those specifically granted in this EULA. Without limiting the foregoing, End-User specifically agrees *not* to (i) attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software or any portion thereof; (ii) modify, port, translate, localize or create derivative works of the Software; (iii) remove any of NetAlly’s or its vendors’, copyright notices and proprietary legends; (iv) use the Products to (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violate any law, statute, ordinance, or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); or (c) propagate any virus, worms, Trojan horses or other programming routine intended to damage any system or data; (v) file copyright or patent applications that include the Product or any portion thereof; and/or (vi) use of the Portal, Products and/or Services on violation of the AUP.
5. Term & Termination: This EULA shall continue unless terminated pursuant to this Section; provided that the applicable subscription term for any licenses purchased hereunder shall continue for the period of time specified in the applicable order. Either party may terminate this EULA immediately upon providing written notice of breach to the other party if such other party materially breaches any of its obligations hereunder but fails to cure such breach within a period of seven (7) calendar days following receipt of such written notice. Upon any termination of this EULA (i) all licenses granted hereunder shall immediately terminate, and (ii) End-User will destroy the Product subject to and in accordance with Section 10.5 “Environmental Regulations”.
6. Warranties: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT AND SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “AT YOUR OWN RISK”. NETALLY DISCLAIMS ALL WARRANTIES ON MERCHANDISE SUPPLIED UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NETALLY DOES NOT WARRANT AGAINST INTERFERENCE USE OF THE PRODUCTS AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THAT THE PRODUCTS WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PRODUCT AND THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICES WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE NETALLY SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE NETALLY SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. Further, End-User agrees solely and exclusively to seek any recompense with respect to any all warranty claims from whomever the End-User purchased the applicable Product.
7. LIMITATION OF LIABILITY: Consumers may have legal rights within such Consumer’s country of residence, which would prohibit the following limitations from applying; therefore, where prohibited the following will not apply and only to the extend prohibited. Consumers are encouraged to contact local consumer advocacy organizations. NETALLY SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE UNLESS SUCH LOSS OR DAMAGE IS DUE TO NETALLY’S GROSS NEGLIGENCE AND/OR WILLFUL MISCONDUCT. IF NETALLY IS FOUND LIABLE, THE AMOUNT OF NETALLY’S MAXIMUM LIABILITY FOR ANY AND ALL LOSSES AND/OR DAMAGES (IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED THE TOTAL DEPRECATED VALUE, CALCULATED ON A FIVE (5) YEAR STRAIGHT LINE DEPRECIATION BASIS OF THE PRODUCT(S) PURCHASED BY THE END-USER OR IF THE PRODUCT IS FULLY DEPRECATIATED THEN-CURRENT SALVAGE VALUE OF THE APPLICABLE PRODUCT(S).
8. EXCLUSION OF CONSEQUENTIAL DAMAGES: Consumers may have legal rights within such Consumer’s country of residence, which would prohibit the following limitations from applying; therefore, where prohibited (the following will not apply and only to the extend prohibited. Consumers are encouraged to contact local consumer advocacy organizations. IN NO EVENT SHALL NETALLY BE LIABLE TO THE END-USER OR ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, AND/OR INCIDENTAL DAMAGES, WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF DATA, EVEN IF NETALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
9. ESSENTIAL PURPOSE: THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN SHALL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.
10. General Provisions:
10.1 Entire Agreement & Waiver. This EULA represents the entire agreement between the parties on the subject matter hereof and supersedes all prior discussions, agreements and understandings of every kind and nature between the parties. Each party agrees that the failure of the other party at any time to require performance by such party of any of the provisions herein shall not operate as a waiver of the rights of such party to request strict performance of the same or like provisions, or any other provisions hereof, at a later time.
10.2 Severability & Survival. The illegality or unenforceability of any provision of this EULA shall not affect the validity and enforceability of any legal and enforceable provisions hereof. Should any provision of this EULA be deemed unenforceable by a court of competent jurisdiction then such clause shall be re-construed to provide the maximum protection afforded by law in accordance with the intent of the applicable provision. Any provision contained herein, which by its nature should survive the termination of this EULA shall survive, including, but not limited to, 7 “Limitation of Liability”, 8 “Exclusion of Consequential Damages”, 9 “Essential Purpose”, and 10 “General Provisions”.
10.3 Assignment. The End-user may assign any rights or delegate any obligations hereunder, whether by operation of law or otherwise, except in the case of a sale of either party’s business whether by merger, sale of assets, sale of stock or otherwise, or except with the prior written consent of the other party, which consent will not be unreasonably withheld. This EULA binds the parties, their respective participating subsidiaries, affiliates, successors, and permitted assigns.
10.4 Compliance & Export Controls. End-User shall comply fully with all applicable laws, rules, and regulations including those of the United States, and any and all other jurisdictions globally, which apply to End-User’s business activities in connection with this EULA. End-User acknowledges that the NetAlly Products and/or NetAlly Services are subject to United States Government export control laws. End-User shall comply with all applicable export control laws, obtain all applicable export licenses, and will not export or re-export any part of the Products and/or Services to any country in violation of such restrictions or any country that may be subject to an embargo by the United States Government or to End-Users owned by, or with affiliation to, such countries embargoed by the United States Government.
10.5. Environmental Regulations. Upon any termination of this EULA, End-User hereby certifies that the Product will be disposed of or destroyed, at your own expense and in accordance with all applicable environmental protection regulations, including but not limited to the U.S. Environmental Protection Agency Universal Waste Disposal Regulation (U.S. EPA 40 CFR § 273.2 – 273.9, https://www.epa.gov/hw/universal-waste), the European Union Waste Legislation on Batteries and Accumulators (EU Directive 2006/66/EU,
https://ec.europa.eu/environment/waste/batteries/legislation.htm), the Australian Battery Recycling Initiative Safety Guidelines (ARBI, https://batteryrecycling.org.au/resource-types/guidelines/ ) and/or any similar regulations, as applicable to your location and then-current industry best practices for the disposal of lithium-ion batteries.
10.6 U.S. Government Use Notice. The NetAlly Software is a “Commercial Item”, as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202-1 through 227.7202-4, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government End-Users (a) only as Commercial Items and (b) with only those rights as are granted to all other End-Users pursuant to the terms and conditions herein. For some components of the Software as specified in the Exhibit, Attachment, and/or Schedule, this Software and Documentation are provided on a RESTRICTED basis. Use, duplication or disclosure by the United States Government is subject to restrictions set forth in Subparagraphs (c) (1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
10.7 Applicable Law & Disputes. The parties specifically agree that the U.N. Convention on the International Sale of Goods, the Uniform Computer Information Transactions Act (“UCITA”), and the International Commercial Terms issued by the International Chamber of Commerce (“Incoterms”) shall not apply to any and all actions performed by either party hereunder in furtherance of this EULA. This EULA and all resulting claims and/or counterclaims shall be governed, construed, enforced, and performed in accordance with the laws of the State of Colorado, United States of America, without reference and/or regard to its conflicts of laws principles. The parties hereto specifically agree that the exclusive jurisdiction for any and all resulting claims and/or counterclaims arising out of this EULA shall be the federal and local courts of Denver, Colorado.
10.8 Force Majeure. Neither party shall be liable for any failure or delay in performing any other obligation under this General T&Cs, nor for any damages suffered by the other by reason of such failure or delay, which is, indirectly or directly, caused by an event beyond such party’s foreseeable control including but not limited to strikes, riots, natural catastrophes, terrorist acts, pandemic, endemic, epidemic, outbreak(s), governmental intervention, or other acts of God, or any other causes beyond such party’s reasonable control.
11) Notices: All notices under this EULA shall be in English and shall be in writing and given to the address indicated upon the cover page and may be sent either by (i) registered airmail; (ii) overnight delivery through a reputable third-party courier; or (iii) via electronic mail (email) sent “read receipt” and “delivery receipt”. With respect to NetAlly’s receipt of electronic notice set forth in (iii) above such notice shall only been deemed received once End-User receives a confirmation of “read receipt” and “delivery receipt” and such notice shall only be valid if sent to email@example.com.
Last update: 01 March 2020