VSN License Agreement
SUBSCRIBER AGREEMENT
TERMS AND CONDITIONS OF
VOLTAGE SECURITY NETWORK
THIS SUBSCRIBER AGREEMENT ("AGREEMENT") SETS FORTH THE TERMS AND CONDITIONS THAT APPLY TO THE USE OF THE PROPRIETARY VOLTAGE SECURITY NETWORK ("SERVICE") PROVIDED BY VOLTAGE SECURITY, INC. ("VOLTAGE") TO THE SUBSCRIBER ("YOU") AND THE INDIVIDUAL USERS IDENTIFIED BY YOU AS BEING AUTHORIZED TO USE THE SERVICE ("AUTHORIZED USERS"). THE PRIVACY POLICY ASSOCIATED WITH THE SERVICE LOCATED AT http://www.voltage.com/vsn/terms.htm AND THE END USER LICENSE AGREEMENT ("EULA") FOR VOLTAGE DESKTOP SOFTWARE ("DESKTOP SOFTWARE") SET FORTH AT THE END OF THIS AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE.
IN ORDER RECEIVE THE SERVICE, YOU MUST CLICK ON THE "Agree" BUTTON DURING SIGN-UP OR PURCHASE THE SERVICE FROM A VOLTAGE AUTHORIZED RESELLER. BY CLICKING ON THE "Agree" BUTTON AND/OR BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND THE EULA SET FORTH AT THE END OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT CLICK ON THE "Agree" BUTTON OR DO NOT PURCHASE THE SERVICE FROM A VOLTAGE AUTHORIZED RESELLER, VOLTAGE WILL HAVE NOT ENTERED INTO ANY LEGAL AGREEMENT WITH YOU AND SHALL NOT PROVIDE OR DELIVER TO YOU THE SERVICE OR ACCOMPANYING DESKTOP SOFTWARE.
1. 30-Day Cancellation Right for 25 or Fewer Authorized Users. If you have set up an account for twenty five (25) or fewer Authorized Users and have not purchased the Service, you may cancel your account within thirty (30) days of opening the account. Your use of the Service and your license to use the Service and the Desktop Software will automatically expire at the end of the thirty (30) day period unless you purchase the Service. Once you purchase the Service, the 30-day cancelation right shall lapse.
2. Subscription Period. Subject to Voltage's receipt of necessary payment, your initial subscription for the Service shall be for one year from the date you establish your account (or the period of time set forth on your order if you purchase VSN through a resellers) (the "Subscription Term") and shall automatically renew for addition one-year terms unless you cancel your account. Voltage or its applicable authorized reseller will notify you prior to the end of your Subscription Term for your particular Service plan, at which time you may choose to cancel your service. If you don't cancel the Service by the end of the then-current Subscription Term, you will be charged for and agree to a subsequent annual Subscription Term. In order to cancel the Service for subscriptions purchased directly from Voltage, you must cancel before the end of the current Subscription Term by notifying Voltage by sending an email to vsnsales@voltage.com with the words: "CANCEL VSN SUBSCRIPTION" in the Subject line of the email and further describe the number of Authorized User subscription you would like to cancel. A confirmation email will be sent by Voltage within 7 business days confirming your cancellation.In order to cancel the Service for subscriptions purchased from an applicable authorized reseller, you must notify your applicable authorized reseller in the manner prescribed by the authorized reseller.
3. Your Responsibility for Obtaining Internet Access, CPE, and Confirmation of Payment. You acknowledge and agree that after the Trial Period, the Service cannot be provided unless and until you have established an account and selected a Service plan. You acknowledge and agree that you are solely responsible for purchasing and maintaining all software and hardware (collectively, "CPE"), and Internet access services necessary to access and use the Service, other than the server hardware and software used by Voltage to provide the Service and the Desktop Software licensed to you pursuant to the End User License Agreement set forth below. Further, you acknowledge and agree that if Voltage does not receive payment for your account as required, whether from you or the authorized reseller, Voltage may terminate your account without liability to you.
4. Subscription Fee. If you decide to purchase a subscription for the Service, you are required to pay for your particular Service plan either (i) through our third party payment processing partner ("Payment Administrator") at the time you establish your account, (ii) through a Voltage authorized reseller as directed by the authorized reseller; or (iii) by making a payment directly to Voltage by contacting vsnsales@voltage.com. Voltage will send notification of activation of your account to the e-mail address provided when your account is registered after payment has been received. To the extent that payment mechanisms are provided through third parties, you acknowledge and agree that Voltage shall have no liability to you arising out of the acts or omissions of such third parties. YOUR SUBMISSION OF THIS AGREEMENT CONSTITUTES YOUR CONSENT TO THE ANNUAL CHARGE ASSOCIATED WITH THE SERVICE TO THE CREDIT CARD NUMBER PROVIDED BY YOU TO VOLTAGE, THE PAYMENT ADMINISTRATOR, OR THE VOLTAGE AUTHORIZED RESELLER, AND YOU EXPRESSLY AUTHORIZE VOLTAGE AND/OR SUCH THIRD PARTIES TO CHARGE ANY OR ALL AMOUNTS YOU MAY OWE FOR YOUR ACCOUNT AND/OR ANNUAL ACCOUNT RENEWAL TO THE CREDIT CARD YOU'VE PROVIDED.
5. Service Limitation. You acknowledge and agree that in order to use the Service, you are required to adhere to the Service limitations set forth in this Section 6. You acknowledge and agree that your use of the Service shall be limited to 1000 outbound encrypted emails per calendar month per Authorized User unless otherwise agreed upon in writing by Voltage. You understand and agree that, as part of the Service and in order for any e-mails or other communications sent by you via the Service to be encrypted and then sent from or by your designated personal computer or those of your Authorized Users, the Desktop Software must be loaded and installed on such computers and you must have Internet access available on such computers. In the event you do not comply with the Service limitations, Voltage may suspend the Service and/or cancel your account without liability to you.
6. Responsibility for Use of Your Service Account. You acknowledge and agree that you are responsible for your use of your account and the use of the Service by your Authorized Users.
7. System Compatibility. You acknowledge and agree that the Desktop Software does not work on some operating systems. You represent, warrant and agree that the email program/system and computer that will be used to operate the Desktop Software, or otherwise use the Service, satisfies or exceeds Voltage's minimum system and interoperability requirements set forth at http://www.voltage.com/vsn/quickstart.htm.
8. Confidentiality of Account Access: End User Responsibility. You acknowledge and agree that (i) you and your Authorized Users are, and shall be, fully responsible for, and shall take all reasonable steps necessary in order to, establish and implement any and all measures needed to limit the control and/or access to your account, including limiting access to passwords used to access your account; and (ii) Voltage's shall have no liability to you or any third party for your failure to prevent any unauthorized access or use of your account.
9. Termination.
a. Termination by You. You may terminate your Service at any time by following the instructions on the Voltage support Website at www.voltage.com or contacting your applicable authorized reseller. In the event you terminate your Service prior to the end of your Subscription Term, you will not be entitled a refund of your subscription fee.
b. Termination by Voltage. Voltage may terminate this Agreement without notice if you are in default and/or if (a) you or your Authorized Users use the Service in a way that has a detrimental effect upon Voltage, its customers or the Service (as determined by Voltage, in its sole discretion); (b) you or your Authorized Users attempt to use the Service of the Desktop Software or any component thereof in contravention of the terms of this Agreement, including but not limited to, the terms of the End User License Agreement, and/or you attempt to reverse engineer the Desktop Software (including any attempt to decompile or disassemble the Software); (c) you or your Authorized Users transmit harassing, abusive, libelous, illegal or deceptive messages or files (as determined by Voltage, in its sole discretion); (d) you or your Authorized Users use the Service or Desktop Software to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortuous act; or (f) payment of the subscription fee is not timely made, and you fail to immediately provide Voltage with an alternative method of payment acceptable to Voltage (as determined by Voltage, in its sole discretion). In addition, in the event Voltage is prevented from providing any portion or all of the Service by any law, regulation, or ruling, regardless of form, issued by any judicial or other governmental entity, or if a notice from a governmental entity, department or agency indicates that the Service cannot be provided, Voltage may immediately cease providing the Service without any liability whatsoever to you. Nothing herein shall be construed to require Voltage to seek a waiver of any law, rule, regulation, or restriction, or seek judicial review or appeal of any court order.
10. Miscellaneous Representations and Warranties. You agree, represent and warrant to Voltage that:
a. You and your Authorized Users will only use the Service and Desktop Software for the sending and receiving of electronic messages in accordance with the terms hereof, and will not use the same in any manner that may degrade the performance or availability of the Services;
b. You will be solely liable for any transmissions sent through the Services, and that (i) Voltage has no control over the content of any transmission nor will it be liable for such content; (ii) you and your Authorized Users will not use your the Service or Desktop Software to create or distribute any images, sounds, messages or other material that are obscene, harassing, racist, malicious, fraudulent or libelous, nor use the Service for any activity that may be considered or are unethical, immoral, or to "spam" or send other such unsolicited mass e-mails;
c. Any statement or representation made by you was, at the time made, and remains, material to, and relied upon by, Voltage, its agents and its contractors (including any Wireless Service provider), ;
d. Voltage retains all right, title and interest to the copyrights, trademarks and all other intellectual property rights associated with the Service and Desktop Software, and that you will not, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer, nor allow any third party to copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Desktop Software, or other material provided under this Agreement for any purpose whatsoever; provided that you and your Authorized Users may copy the Desktop Software for use by your and/or your Authorized Users;
e. You will not remove or alter any copyright notices and other proprietary legends from the Desktop Software or other material provided in connection with the Service;
f. You and your Authorized Users are not subject to export control restrictions established by laws and regulations of the United States of America and you and your Authorized Users shall comply with all export and import laws, rules, regulations and restrictions of the jurisdictions in which you and/or your Authorized Users reside; and
g. You will obtain any and all licenses, permits or other required approvals or authorizations that may be necessary or required by federal, state, and local laws in order to lawfully operate the CPE used by you in connection with the Services.
11. Indemnification. You shall defend, indemnify and hold harmless Voltage, its employees, officers, directors and agents, as well as Voltage's suppliers, successors, affiliates, agents and assigns (the .Indemnified Parties.) from any claims, damages, losses, or expenses (including without limitation attorneys. fees and costs) incurred by any Indemnified Parties in connection with all claims, suits, judgments and causes of action: (i) for infringement of patents or other proprietary rights arising from combining with or using any device, system or service in connection with the Service and Desktop Software (or any portion thereof); (ii) for libel, slander, defamation or infringement of copyright or other intellectual or proprietary right with respect to material transmitted by you using the Desktop Software and/or the Service; (iii) relating to a breach by you of the representations and warranties made by you herein; (iv) relating to a breach of any of the terms and conditions of contained in this Agreement; or (v) injury, death or property damage arising in connection with the presence, use or non-use of the Desktop Software and/or Service. No remedy herein conferred upon Voltage is intended to be, nor shall it be construed to be, exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative. In the event of the termination of this Agreement by Voltage for your breach, you shall pay to Voltage all attorneys. fees, collection fees, and related expenses, expended or incurred by Voltage in the enforcement of any right or privilege hereunder (including, but not limited to, telephone, freight, express and postal charges, expenses of paid investigators and reasonable compensation for time of Voltage's employees, agents and representatives).
12. Privacy. Voltage's privacy policy is located at http://www.voltage.com/vsn/privacy.htm. You represent and warrant to Voltage that you have submitted this Agreement only after you have read the privacy policy, understand it, and agree to be bound by its terms.
13. Limitation of Liability.
a. Notwithstanding anything contained herein to the contrary, the sole remedy for loss or damage caused by partial or total nonperformance of the Desktop Software or the Service, or for delay or nonperformance of the Desktop Software and/or Service, or partial or total failure of the Service under this Agreement, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, shall be your actual direct damages, if any, which shall not, notwithstanding anything contained herein to the contrary, exceed the amount paid by you under this Agreement. VOLTAGE SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, TIMELINESS, COMPLETENESS OR CONTINUED AVAILABILITY OF THE SERVICE OR THE DESKTOP SOFTWARE OR FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE DESKTOP SOFTWARE AND/OR SERVICE OR ANY COMPONENT THEREOF, INCLUDING USE FOR MISSION-CRITICAL OR EMERGENCY COMMUNICATIONS OR IMPROPER OR UNAUTHORIZED ACCESS TO OR INTERCEPTION OF ANY COMMUNICATION OR OTHER NON-PUBLIC INFORMATION.
b. AS A MATERIAL PART OF THE CONSIDERATION PAID BY YOU UNDER THIS AGREEMENT, YOU AGREE THAT IN NO EVENT SHALL VOLTAGE BE LIABLE TO YOU OR ANY PARTY CLAIMING THROUGH YOU FOR, AND YOU HEREBY WAIVE YOUR RIGHT TO CLAIM, ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, BUSINESS OR REVENUES, LOSS OF THE USE OF THE DESKTOP SOFTWARE AND/OR SERVICE, OR ANY ASSOCIATED PRODUCTS, LOSS OF DATA, IMPROPER OR UNAUTHORIZED ACCESS TO OR INTERCEPTION OF ANY COMMUNICATION OR OTHER NON-PUBLIC INFORMATION, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT SERVICES, DOWNTIME COSTS OR THE CLAIMS OF YOUR CUSTOMERS FOR SUCH DAMAGES) DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN AGREEMENT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN. THE FOREGOING DISCLAIMER SHALL APPLY IN CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, YOUR INABILITY TO USE THE DESKTOP SOFTWARE OR SERVICE, OR ANY PART THEREOF.
c. THE SERVICE IS PROVIDED AS IS AND AS AND WHEN AVAILABLE, WITHOUT WARRANTY OF ANY KIND. VOLTAGE MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND THAT YOU WILL HAVE OR ENJOY UNINTERRUPTED USE OR OPERATION OF THE SERVICE, OR THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE OR DEFINED PERIOD OF TIME. ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT AND ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND/OR THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE CONDUCT ARE HEREBY EXCLUDED. VOLTAGE SHALL HAVE NO LIABILITY TO YOU FOR PATENT OR COPYRIGHT INFRINGEMENT OR MISAPPROPRIATION OF TRADE SECRETS WITH RESPECT TO ANY SERVICE PROVIDED BY ANY THIRD PARTY THROUGH VOLTAGE. YOUR RECOURSE IN THE EVENT OF ANY SUCH CLAIM WITH RESPECT TO ANY SERVICE SHALL BE SOLELY AGAINST SUCH THIRD PARTY. IN ADDITION, VOLTAGE DOES NOT WARRANT THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF THE SERVICE OR ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICE. YOU ACKNOWLEDGE THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICE ARE AT YOUR SOLE RISK AND DISCRETION AND THAT VOLTAGE WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY HARM OR DAMAGE TO YOU OR YOUR PROPERTY (INCLUDING ANY PERSONAL COMPUTER EQUIPMENT).
14. Assignment and Delegation. Voltage may assign this Agreement without notice to, or pre-approval by, you. You, however, may not and shall not assign this Agreement or any of your rights hereunder. Voltage may perform all obligations to be performed under this Agreement directly or may have some or all obligations performed by its contractors or subcontractors.
15. Notices/On-Line Posting of General Changes. Except as otherwise provided in this Agreement, all notices or other communications hereunder shall be deemed to have been duly given when made in writing and delivered in person, via overnight courier or certified mail (postage prepaid, return receipt requested and addressed to you as shown on the Service Order/Order Form). Notices to Voltage must be in writing, and must be physically mailed addressed to Voltage Security, Inc., 4005 Miranda Avenue, Suite 210, Palo Alto, CA 94304 (Attention: CFO). Notices to you will be addressed to you based on the information provided by you during the account registration process unless you have notified Voltage of any changes. Notwithstanding the foregoing, or anything contained herein to the contrary, Voltage may amend, revise, change, alter, replace, substitute the system requirements and interoperability standards, acceptable use provisions, or any other general policies applicable to all end users, at any time and in any manner, including by posting a notice of any such changes or modifications, etc. on the Service website or by e-mail.
16. Force Majeure. Notwithstanding any other provision of this Agreement, neither party shall be deemed in default of this Agreement for failure to fulfill its obligations when due to causes beyond its reasonable control. This provision shall not be construed as excusing nonperformance of any obligation by either party to make payment to the other party under this Agreement.
17. Miscellaneous Provisions.
a. No Third Party Beneficiaries. Except as otherwise specifically stated in this Agreement, the provisions herein are for the benefit of the Parties and not for any other person or entity.
b. Consumer Rights Information. As a party to this Agreement, and as a user of the electronic services associated herewith, you are, if resident in California, entitled to the following specific consumer information under California Civil Code Section 1789.3: The Complaint assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 .N. Street, Suite 501, Sacramento, California 95814 or by telephone at 1-916-445-1254
c. Waivers of Default. Waiver by either Party of any default by the other Party shall not be deemed a continuing waiver of such default or a waiver of any other default.
d. Survival. The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof by either or both parties shall so survive the completion of performance, cancellation or termination of this Agreement.
e. Governing Law. This Agreement shall be construed in accordance with the laws of the State of California applicable to agreements executed and wholly performed within that State without giving effect to anybody of law governing conflicts of laws. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded.
f. Venue/Forum Selection/Service of Process. The parties hereto: (i) agree that any disputes shall be heard in and by any state or federal court located within the County of Santa Clara, State of California, U.S.A.; (ii) hereby waive any objection to jurisdiction of said courts with respect to any action instituted against them as provided herein; and (iii) agree not to assert any defense based on lack of jurisdiction. Each party hereto also waives personal service of any and all process upon it and consents that all such service of process shall be made by Certified U.S. Mail or overnight courier directed to (a) you, at the address provided by you during the registration process, as updated by you from time to time, and (b) Voltage, at the address set forth above in the notice section.
g. Right To Alter Systems, Equipment. Voltage reserves the right, from time to time, to make changes in the configuration of Voltage's proprietary facilities, type and location of equipment, programming languages, end user identification procedures, accessibility periods, allocation and quantity of resources utilized, rules of operation, its administrative and operational algorithms, and the designation of the control center serving you at any particular address.
VOLTAGE SECURITY, INC.
END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT ("LICENSE") APPLIES TO THE USE OF ANY SOFTWARE PROVIDED DIRECTLY OR INDIRECTLY BY VOLTAGE SECURITY, INC. ("VOLTAGE"), A DELAWARE CORPORATION WITH A PLACE OF BUSINESS AT 4005 MIRANDA, SUITE 210, PALO ALTO, CA 94304, TO ANY USER ("CUSTOMER"). CUSTOMER'S USE OF SUCH SOFTWARE ("SOFTWARE") MUST BE IN ACCORDANCE WITH THIS LICENSE.
UNLESS CUSTOMER HAS PURCHASED A SUBSCRIPTION TO THE VOLTAGE HOSTED EMAIL ENCRYPTION SERVICE, THE TERM OF THIS LICENSE SHALL BE THIRTY (30) DAYS TO ALLOW CUSTOMER TO EVALUATE THE SOFTWARE DURING SUCH THIRTY (30) DAY PERIOD.
BY CLICKING ON THE "I AGREE" DURING SIGN-UP AND/OR DURING INSTALLATION AND/OR USING THE SERVICE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS LICENSE, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS LICENSE, VOLTAGE DOES NOT LICENSE THE SOFTWARE TO CUSTOMER.
PROPRIETARY RIGHTS. The Software is protected by copyright laws and international treaty provisions, as well as other intellectual property laws and treaties. All right, title and interest in and to the Software, including but not limited to copyrights, patent rights, trade secrets and other intellectual property rights, are owned by Voltage or its suppliers. All copies and portions of the Software, in any form, belong to Voltage or its suppliers, which retain all rights not expressly granted herein. Nothing in this License constitutes a waiver of Voltage's rights under United States copyright law or any other law.
LICENSE. Voltage grants Customer a nonexclusive license to use the Software subject to the terms and restrictions set forth herein. No license is granted with respect to any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the Software. The Software is licensed to be used only in connection with Voltage server software and may not be distributed or sublicensed except as expressly provided in this License. The Software may be copied for use and access to the Service and essential backup or archival purposes in support of Customer's use of the Software as permitted hereunder. Customer must reproduce and include all copyright notices and any other proprietary rights notices appearing on the Software on any copies that Customer makes. Notwithstanding anything to the contrary in this License, the obligations of Voltage set forth in this License do not extend to any software or materials which may be made available by Voltage, or otherwise obtained or used by Customer, subject to an open source license or other open source terms ("Open Source Software"). Customer agrees that all Open Source Software shall be and shall remain subject to the terms and conditions under which it is provided. Customer shall not use or combine the Open Source Software with the Software or other items in any manner that would subject the Software to open source terms and conditions.
OTHER RESTRICTIONS. Customer may not rent, lend, lease or distribute the Software. Customer may not alter, modify or adapt the Software or reverse engineer, decompile, disassemble, or create derivative works from the Software, or allow a third party to do any of the foregoing, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation or by this License. If Customer is a European Union ("EU") resident, information necessary to achieve interoperability of the Software with other programs within the meaning of the EU Directive on the Legal Protection of Computer Programs is available to Customer from Voltage upon written request. Voltage may terminate this License if Customer fails to comply with any of its terms and conditions. In such event, Customer must destroy all copies of the Software or any portion thereof.
NO WARRANTIES; LIMITATION OF DAMAGES. VOLTAGE EXPRESSLY DISCLAIMS ANY WARRANTY FOR THE SOFTWARE. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH CUSTOMER. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL VOLTAGE BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH EVEN IF VOLTAGE OR ANYONE ELSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL VOLTAGE'S LIABILITY EXCEED THE LICENSE FEE FOR THE SOFTWARE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CUSTOMER.
EXPORT RESTRICTIONS. Customer acknowledges that the Software contains cryptographic features and is subject to United States and local country laws governing import, export, distribution and use. The Customer is responsible for compliance by the Customer and the end users with United States and local country laws and regulations and shall not export, use or transmit the Software (i) in violation of any export control laws of the United States or any other country, or (ii) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders.
UNITED STATES GOVERNMENT. If the Software is accessed or used by any agency or other part of the U.S. Government, Customer and the U.S. Government acknowledge that (i) the Software and accompanying materials constitute "commercial computer software" and "commercial computer software documentation" under paragraphs 252.227.14 and 252.227.7202 of the DoD Supplement to the Federal Acquisition Regulations ("DFARS") or any successor regulations, and the Government is acquiring only the usage rights specifically granted in this License; (ii) the Software constitutes "restricted computer software" under paragraph 52.227-19 of the Federal Acquisition Regulations ("FAR") or any successor regulations and the government's usage rights are defined in this License and the FAR.
TERM AND TERMINATION. This License is effective until terminated. Customer may terminate it at any time by destroying the Software together with all copies and merged portions in any form. It will also terminate immediately if Customer fails to comply with any term or condition of this License. Upon such termination Customer agrees to destroy the Software, together with all copies and merged portions in any form.
GOVERNING LAW. This License shall be governed by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents and by the laws of the United States. Customer consents to the exclusive jurisdiction of the state and federal courts of Santa Clara County, California. Customer agrees that the United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this License.
ENTIRE AGREEMENT. This License sets forth the entire understanding and agreement between Customer and Voltage, supersedes all prior agreements, whether written or oral, with respect to the Software and subject matter hereof except as expressly set forth in this License, and may be amended only in a writing signed by both parties. If any provision of this License shall be held illegal or unenforceable by a court or tribunal of competent jurisdiction, the parties shall reform the provision to the minimum extent necessary to render it valid and enforceable in conformity with their intent as manifested herein. The remainder of the License shall remain in full force and effect.
