End-User Licence Agreement
Important Legal Terms and Conditions; Disclaimer
License. The firmware (software embedded in and provided with the Product) and any other accompanying software (collectively, the “Software”) is licensed to you, not sold. You are granted a non-transferable, non-exclusive license to use the Software solely in connection with your use of the Product. You understand and agree that you may not distribute the Software in any form, or to use the Software firmware except as it is embedded in the non-volatile memory component(s) of the Product or provided with the Product for use exclusively in the operation and use of the Product. You will maintain the Software and associated documentation in strict confidence and will not disclose them or make them available to any unauthorized third parties. All Software is licensed, not sold. Except for the limited license granted above, we retain all right, title, and interest in and to the Software.
Product Restrictions. You may not (i) attempt to reverse engineer, de-compile, or disassemble the Product, except to the extent permitted by applicable law; (ii) copy, alter, or modify the Product; (iii) sublicense, rent, timeshare, loan, lease or otherwise transfer the Software (except in connection with the permanent transfer of the Product to a third party who agrees to be bound by this Agreement); (iv) use the Product except as specifically authorized in the accompanying documentation; and (v) remove any proprietary notices (e.g., copyright and trademark notices) from the Product.
Automatic Updates. From time-to-time, we may make available bug fixes, patches, upgrades, and modifications to the Software (“Updates”). Updates are included in the definition of “Software.” Updates may be automatically installed without notice to you. Some Updates may include additional terms and conditions that will be made available to you. You agree to the installation of those Updates and to be bound by any additional terms and conditions and no further consent will be required. If you do not want to receive these Updates, you must stop use of the Product
Subscription Services; Account Registration. In connection with the Product we make available certain reporting and diagnostic information through an associated online subscription service, as more particularly described in our Product documentation. We may change or discontinue all or any portion of the subscription services in our discretion. You are solely responsible for all telecommunication or Internet connections required to access the subscription services, as well as all necessary hardware and software. You agree to: (a) provide true, accurate, current, and complete information when registering to use the subscription service and establishing your account (“Registration Information”) and (b) maintain and promptly update the Registration Information to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or we have reasonable grounds to suspect your information is untrue, inaccurate, not current, or incomplete, we may suspend or terminate your account. You are entirely responsible for maintaining the confidentiality of any passwords and any usage and activities that occur in connection with your account. You agree not to allow others to access your account or utilize your password. Doing so will compromise the security of your account. We may, in our discretion, suspend your access to the subscription services for any of the following reasons (a) to prevent damages or risk to, or degradation of, the subscription services; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect us from potential legal liability; or (d) in the event you fail to pay any Product fees when due.
Privacy. We recognize the importance of respecting your privacy. The Privacy Statement (linked below) provides a description of how we collect, use, share and protect personal information on its website, as well as the choices and access rights you have in regards to such personal information. For more information on our privacy practices and to review our Privacy Statement please visit https://capenetworks.com/legal?p=privacy.
Statistical Data. You grant us a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use, copy, distribute, and otherwise exploit statistical and benchmarking derived from the Products (the “Statistical Data”) for our business purposes; provided the Statistical Data does not include (directly or by inference) any information identifying you or your organization.
Fees; Taxes. You will pay the fees associated with the Products. On an annual basis, we may increase fees for subscription services on prior written or electronic notice to you. In addition to any other payments due under this Agreement, Customer agrees to pay, indemnify and hold Provider harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement; excluding, however, income taxes on profits which may be levied against Provider.
Limited Warranty; Returns; Disclaimer. We warrant the Product will operate in material accordance with its accompanying documentation for a period of ninety (90) days from the date the Product was first purchased (“Warranty Period”). During the Warranty Period and upon proof of purchase of the Product by you, we, at our option, will either (i) repair or replace the Product using either new or refurbished parts without charge for either parts or labor; or (ii) refund to you all or a part of the purchase price of the Product. All replaced parts or Products for which a refund is given will become our property. If the Product is repaired or replaced during the Warranty Period, the Warranty Period will still expire ninety (90) days from the date of original purchase of the Product.
This limited warranty does not apply to (i) normal wear and tear, and does not cover repair or replacement of any Product damaged by misuse, accident, abuse, neglect, misapplication, physical damage to the Product, or defects due to repairs or modifications made by anyone other than Asimmetric or its authorized service representative; (ii) any peripheral equipment or items other than the Product itself, nor does it apply when the malfunction results from the use of this Product in conjunction with ancillary or peripheral equipment; and (iii) instances where we determine there is no defect in the Product itself (collectively, “Non-Warranty Issues”).
For specific instructions about how to obtain warranty service for your Product and to return your Product, please contact our customer service department using the contact information provided below or on our Web site. You must return your Product using packaging appropriate to protect it from damage to the address specified by our customer service personnel. We will bear the costs of shipping the Product to us for warranty repair, except for Non-Warranty Issues for which you will bear the costs of shipping.
EXCEPT FOR THE EXPRESS WARRANTY PROVIDED ABOVE, THE PRODUCTS ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. WE AND OUR VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS HEREUNDER. WE DO NOT WARRANT THAT THE PRODUCTS WILL MEET YOUR REQUIREMENTS, THAT THE PERFORMANCE OF THE PRODUCTS WILL NOT BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED, OR THAT YOUR SYSTEMS WILL BE SECURE FROM ANY ATTACK OR ACTION AS A RESULT OF THE PERFORMANCE OF THE PRODUCTS.
Limitation of Liability. NEITHER WE NOR OUR VENDORS AND LICENSORS SHALL HAVE ANY LIABILITY TO YOUR OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT OR THE PRODUCTS. OUR TOTAL LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE PRODUCTS FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE HEREUNDER BY YOUR FOR THE SPECIFIC PRODUCT AS TO WHICH THE LIABILITY RELATES, BUT IN NO EVENT MORE THAN AGGREGATE FEES PAID BY YOU IN THE THIRTY (30) DAYS PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY. The allocations of liability in this Section represent the agreed, bargained-for understanding of the parties and our compensation hereunder reflects such allocations. The limitation of liability and types of damages stated in this Agreement are intended by the parties to apply regardless of the form of lawsuit or claim a party may bring, whether in tort, contract or otherwise, and regardless of whether any limited remedy provided for in this Agreement fails of its essential purpose.
THE PRODUCT IS USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE Asimmetric AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR SYSTEMS, DATA, COMPUTERS, AND NETWORKS. Asimmetric WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES AND FOR SECURING YOUR SYSTEMS, DATA, COMPUTERS, AND NETWORKS.
Some states may not allow the exclusion of limitation or incidental or consequential damages nor allow limitations on how long an implied warranty lasts, not allow provisions that permit the warranty to be voided. Thus, the above limitations or exclusions may not apply to you.
Term and Termination. This Agreement will remain in effect for as long as you possess the Products. This Agreement and your right to access the subscription services will automatically terminate in the event you breach any term of this Agreement. The following Sections will survive any termination or expiration of this Agreement: Product Restrictions; Limitation of Liability; Feedback; Choice of Law and Venue; Entire Agreement.
Feedback. You may provide us with suggestions, comments or other feedback (collectively, “Feedback”) with respect to the Products. Feedback is voluntary. We are not obligated to hold it in confidence. We may use Feedback for any purpose without obligation of any kind. To the extent a license is required under any of your intellectual property rights to make use of the Feedback, you grant Asimmetric an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with Asimmetric’s business, products, and services, including the enhancement of the Products.
Safety Information: When using the Product, basic safety precautions should always be followed to reduce the risk of fire, electric shock, damage to the Product, loss of property, severe injury to persons or even loss of life, including the following: do not use the Product and all related accessories near or under water; avoid using this product during an electrical storm; do not insert the Product into an extension cord, receptacle or outlet unless the prongs can be fully inserted, failure to do so may cause electric shock or excessive heat resulting in a fire; do not overload power outlets and extensions cords, otherwise it can result in fire or serious electrical shock; unplug with caution the Product from power outlets if it emits smoke, an abnormal smell or makes unusual noise; do not disassemble the Product, it contains no user-serviceable parts; unplug the Product from any power outlet before cleaning (use no liquid or aerosol cleaners); and unplug the Product from the power outlet if the cable or power adapter prongs are damaged or frayed, if liquid has been spilled onto the Product, if the Product has been exposed to rain, water or any other liquid, if the internal components of device are exposed.
Use of Products in Certain Applications. Products sold by Asimmetric are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If you use or sell the Products for use in any such applications: (i) you acknowledge that such use or sale is at your sole risk; (ii) you agree Asimmetric and the manufacturer(s) of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (iii) you will indemnify, defend and hold Asimmetric and the manufacturer(s) of the Products harmless from and against any and all claims, damages, fines, sanctions, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
Export/Import Control Compliance. The sale, resale or other disposition of Products and any related technology or documentation may be subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries. You are solely responsible for complying with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export or import any Products to any country to which such export or transmission is restricted or prohibited. You understand and acknowledge your responsibility to obtain any license to export, re-export or import as may be required.
Choice of Law and Venue: This Agreement is to be construed under the laws of the State of California, without giving effect to the conflict of law principles thereof. The United Nations Convention on the International Sales of Goods do not apply to this Agreement. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal (if permitted by law and a party elects to file an action in federal court) courts located in San Francisco, California. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section.
General: You may not assign your rights or delegate your duties under this Agreement either in whole or in part without our prior written consent. Any attempted assignment or delegation without such consent will be void and we may immediately terminate this Agreement for cause. Except as provided above, this Agreement shall apply to, inure to the benefit of, and be binding upon the parties hereto and their successors and assigns. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed to be a waiver of any further right hereunder. This agreement contains the entire agreement between the parties with respect to the subject matter of this agreement, and it supersedes all other prior and contemporary agreements, understandings, and commitments between the parties with respect to the subject matter of this agreement. Asimmetric SPECIFICALLY OBJECTS TO ANY ADDITIONAL TERMS BEING ADDED THROUGH A PURCHASE ORDER OR SIMILAR DOCUMENT. IF A PURCHASE ORDER IS REQUIRED BY YOU, THE PARTIES AGREE THAT ANY ADDITIONAL TERMS CONTAINED THEREIN SHALL NOT BECOME PART OF THE AGREEMENT BETWEEN THE PARTIES AND SPECIFICALLY THAT THE TERMS OF THIS AGREEMENT SHALL SUPERSEDE ANY AND ALL TERMS IN ANY PURCHASE ORDER.
U.S. Governmental Rights. The Software is commercial computer software as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf of any the Department of Defense or any component thereof, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.