END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. This End User License Agreement (the “Agreement”) governs your use of the software, and its associated upgrades, updates, and related services (the “Licensed Software”) currently provided or which will be provided by Clyze, or any one of its subsidiaries or affiliated companies (collectively referred to herein as “Clyze," “we,” or “us”).
This Agreement sets out the basis on which Clyze makes the Licensed Software available to you (“user” or “you”) and the terms by which you may use it. By clicking “accept” or installing and/or using the Licensed Software, you are confirming your acceptance of the Licensed Software and agreeing to become bound by the terms of this Agreement and acknowledge that it is enforceable as a written contract signed by you.
If you are under the age of 18, you are not permitted to use the Licensed Software or provide your personal information to use without the consent of your parent or guardian who must first accept this Agreement and administer the Licensed Software on your behalf.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions.
IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE THE LEGAL AGE OR AUTHORITY TO ENTER INTO THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE, AND YOU MUST NOT ACCEPT THIS AGREEMENT.
Clyze reserves the right to modify this Agreement at any time, in accordance with the procedures described below in Section 8.
1. GRANT OF LICENSE
1.1 License Grant. Subject to the terms and conditions of this Agreement, and conditioned upon your compliance therewith, Clyze hereby grants you a non-exclusive, non-transferable, and non-sublicensable license to install and/or use the Licensed Software (the “License”), for such time until either you or Clyze terminates this Agreement.
THIS PRODUCT IS LICENSED TO YOU, NOT SOLD.
As applicable, certain parts of the Licensed Software may be using third party features, some of which are managed by third-party providers for which additional terms may apply. You must comply with such additional terms. Please review such additional terms carefully.
1.2 Scope of Licensed Access and Use. You may install, use, and run one copy of the Licensed Software on no more than one computer at a time, unless you purchase additional licenses or are granted written permission from us for additional users. You may make one copy of the Licensed Software solely for archival purposes. Any copy of the Licensed Software made by you: (a) will remain the exclusive property of Clyze; (b) will be subject to the terms and conditions of this Agreement; and (c) must include all copyright or other intellectual property rights notices contained in the original.
1.3 Use Restrictions. You shall not, directly or indirectly (i) sell, rent out, lease, license, distribute, market, or exploit the Licensed Software or any of its parts commercially, (ii) copy, modify, reverse engineer, decompile, disassemble, adapt, reproduce, or create derivate works of this Licensed Software, in whole or in part; (iii) bypass or breach any security device or protection used for or contained in the Licensed Software create, or use and/or distribute “auto”, “trainer”, “script” or “macro” computer programs or other “cheat” or “hack” programs or software applications for this Licensed Software; (iv) remove, alter, disable or circumvent any copyright and trademark indications or other authorship and origin information, notices or labels contained on or within this Licensed Software; or (v) export or re-export this Licensed Software or any copy or adaptation in violation of any applicable laws or regulations.
1.4 Rules of Conduct. While using the Licensed Software, you agree to comply with all applicable laws, rules, and regulations. You agree that you will only use the Licensed Software for its intended use. You also agree to comply with the following rules of conduct that govern your use of the Licensed Software (“Rules of Conduct”), which are not meant to be exhaustive and can be modified at any time by Clyze:
- a. You may not create, use, share and/or publish by any means in relation to the Licensed Software any material (text, words, images, sounds, videos, etc.) which would breach a duty of confidentiality, infringe any intellectual property right or an individual's right to privacy, or which would incite the committing of an unlawful act.
- b. You may not modify, distort, block, abnormally burden, disrupt, slow down and/or hinder the normal functioning of all or part of the Licensed Software, or its accessibility to other users.
- c. You may not transmit or propagate any virus, trojan horse, worm, bomb, corrupted file and/or similar destructive device or corrupted data in relation to the Licensed Software, and/or organize, participate in, or be involved in any way in an attack on Clyze's servers and/or the Licensed Software.
- d. You may not create, supply or use alternative methods of using the Licensed Software.
- e. You may not transmit or communicate any material or content which, in the sole and exclusive discretion of Clyze, is believed or deemed offensive, including, but not limited to, language that is harmful, threatening, unlawful, abusive, harassing, defamatory, disparaging, obscene, sexually explicit, or racially, ethnically, or otherwise objectionable.
- f. You may not falsely claim to be an employee or representative of Clyze or its partners and/or agents.
1.5 Evaluation, Free and/or Trial License. If you have obtained a free, trial or evaluation version of the Software, then conditioned upon your compliance with the terms and conditions of this Agreement, Clyze grants you a non-exclusive and non-transferable license to execute the Licensed Software solely in executable form. The foregoing license permits execution of a single copy of the Licenses Software on a single device. If we provide you access to the Licensed Software for limited, temporary trial use, your use is permitted for the period limited by Clyze in writing. If there is no period identified, any trial use will expire thirty (30) days after the product is made available to you. If you fail to either return the product or stop using it by the end of the trial period, you will be invoiced for the list price of the Licensed Software. Notwithstanding the foregoing, Clyze, in its discretion, may end the evaluation or trial period at any time, at which point you will no longer have access to any related data, information, and files and you should immediately cease any further use. Furthermore, evaluation and trial products are provided “AS-IS” without support or any express or implied warranty or indemnity for any problems or issues, and Clyze will not have any liability relating to your use of the Licensed Software.
2. OWNERSHIP
All title, ownership rights and intellectual property rights in and to the Licensed Software (including, without limitation, all text, graphics, music or sounds, all messages or items of information, names, effects, concepts, domain names, and any other elements which are part of the Licensed Software, individually or in combination) and any and all copies thereof are owned by Clyze or its licensors. The Licensed Software is protected by national and international laws, copyright treaties and conventions and other laws. This Licensed Software may contain certain licensed materials and, in that event, Clyze's licensors may protect their rights in the event of any violation of this Agreement. Any reproduction or representation of these licensed materials in any way and for any reason is prohibited without Clyze's prior written permission and, if applicable, Clyze's licensors' and representatives' permission. Except as expressly set forth in this Agreement, all rights not granted hereunder to you are expressly reserved by Clyze.
This license confers no title or ownership in the Licensed Software and should not be construed as a sale of any rights in the Licensed Software.
3. CONFIDENTIAL INFORMATION AND PERSONAL DATA
3.1 Our Confidential Information. “Confidential Information” shall mean the Licensed Software and all other information disclosed to you that Clyze characterizes as confidential at the time of its disclosure, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this Agreement, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate, or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Clyze. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Clyze in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement, and will cooperate with Clyze in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Clyze prior to such disclosure to allow Clyze an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Clyze in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
3.2. How we Use Your Data. Clyze processes and uses “Personal Data” (any information that can be used to identify an individual which may include name, address, email address, phone number, login information (account number and password), marketing preferences, social media account information, or payment card number) and “Customer Data” (all information and data that you provide or transfer to Clyze or that the Licensed Software collects from you or your system(s), in connection with your use of the Licensed Software) to deliver, analyze, support, and improve the Licensed Software and as otherwise permitted in this Agreement and in our privacy policy. We will maintain appropriate administrative, physical, and technical safeguards, which are designed to protect the security, confidentiality and integrity of the Personal Data and Customer Data processed by Clyze. Clyze will not share Personal Data and Customer Data with any third-party service providers without your consent.
4. CONSENT TO MONITOR
The Licensed Software may contain technological measures designed to prevent unauthorized or illegal use of the Licensed Software. You acknowledge and agree that: (a) Clyze may use these and other lawful measures to verify your compliance with the terms of this Agreement and enforce our rights, including all Intellectual Property Rights, in and to the Licensed Software; (b) Clyze may deny any individual access to and/or use of the Licensed Software if we, in our sole discretion, believe that your use of the Licensed Software would violate any provision of this Agreement; and (c) Clyze and its representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about your computers, systems and software, that Clyze may gather periodically to improve the performance of the Licensed Software or develop updates. This information will be treated in accordance with Clyze's privacy policy, as amended from time to time, which can be viewed at clyze.com or a successor website.
5. WARRANTY DISCLAIMER, LIMITATION OF LIABILITY
We warrant that the software will provide the features and functions generally described in the product specification on our website when you purchased it and in the product documentation.
SUBJECT TO THE FOREGOING, YOU EXPRESSLY ACKNOWLEDGE THAT USE OF THE PRODUCT IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. THE PRODUCT IS SUPPLIED ON AN “AS IS” AND “AS AVAILABLE“ BASIS. CLYZE, AND CLYZE'S LICENSORS, PARTNERS, AND ASSOCIATED SERVICE PROVIDERS DO NOT MAKE AND HEREBY DISCLAIM ANY GUARANTEES, CONDITIONS, WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING AS TO: (A) ITS CONFORMITY, ACCURACY, COMPLETENESS, RELIABILITY OR SECURITY (B) ITS SUITABILITY FOR A PARTICULAR USE; (C) IMPLIED WARRANTIES OF TITLE AND NON-INFRINGEMENT; (D) ITS MARKET VALUE; OR (E) YOUR SATISFACTION. CLYZE DOES NOT WARRANT THAT THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PRODUCT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY FOR SELECTING THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL CLYZE, OR CLYZE'S LICENSORS, PARTNERS, AND ASSOCIATED SERVICE PROVIDERS BE LIABLE FOR LOSS OR DAMAGE SUFFERED IN CONNECTION WITH THE USE OF THE PRODUCT OR ANY RELATED THIRD PARTY SERVICE. THIS INCLUDES WITHOUT LIMITATION (A) ALL LOSSES OF ANY KIND, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE, (B) DIRECT LOSS; (C) ACCIDENTAL LOSS, (D) INCIDENTAL LOSS, (E) CONSEQUENTIAL LOSS, AND (F) INDIRECT LOSS.
NOTWITHSTANDING THE AFOREMENTIONED LIMITATIONS OF LIABILITY, YOUR SOLE REMEDY IN THE EVENT OF A DISPUTE WITH CLYZE OR ITS LICENSORS, PARTNERS AND ASSOCIATED SERVICE PROVIDERS IS, AT OUR OPTION, EITHER A FULL REFUND OF THE PURCHASE PRICE OR CORRECTION OF THE DEFECTIVE SOFTWARE OR MEDIA. IN NO EVENT WILL CLYZE OR ITS AFFILIATES, LICENSORS, PARTNERS AND ASSOCIATED SERVICE PROVIDERS BE LIABLE FOR DAMAGES IN EXCESS OF ANY AMOUNT YOU HAVE PAID TO CLYZE FOR THE PRODUCT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
NOTHING IN THIS SECTION 5 SHALL AFFECT CLYZE'S LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM CLYZE'S GROSS NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION, OR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
6. INDEMNITY
You are solely responsible for any damage caused to Clyze, its licensors, partners and associated service providers and subcontractors, and other users of the product or any other individual or legal entity as a result of your violation of this Agreement.
YOU HEREBY AGREE TO DEFEND, INDEMNIFY AND KEEP INDEMNIFIED CLYZE AND ITS AFFILIATES, LICENSORS, PARTNERS AND ASSOCIATED SERVICE PROVIDERS AND THEIR SUBCONTRACTORS AGAINST ANY CLAIM OR ALLEGED CLAIMS, LIABILITIES, LOSSES, DAMAGES, AND ALL COSTS (INCLUDING LAWYERS' FEES), DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO YOUR FAULT AND/OR RESULTING FROM (A) A VIOLATION OF ANY PROVISION OF THIS AGREEMENT OR (B) YOUR USE OR MISUSE OF THE PRODUCT. Clyze reserves the right to take sole responsibility, at its own expense, for conducting the defense of any claim for which you agreed to indemnify Clyze. The provisions of this Section 6 shall remain in force after termination of this Agreement.
7. TERM AND TERMINATION
The Agreement is effective from the earlier of the date you purchase, download, or use the Licensed Software, until terminated according to its terms. You and Clyze (or its licensors) may terminate this Agreement, at any time, for any reason. Termination by Clyze will be effective upon (a) notice to you or (b) termination of your Clyze Account (if any) or (c) at the time of Clyze's decision to discontinue offering and/or supporting the Licensed Software. This Agreement will terminate automatically if you fail to comply with any of the terms and conditions of this Agreement. Upon termination for any reason all rights, licenses and authorizations granted to you hereunder will immediately terminate and you shall immediately uninstall the Licensed Software and destroy all copies of the Licensed Software in your possession.
8. CHANGES TO THIS AGREEMENT OR TO THE PRODUCT
Clyze reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this Agreement for security, legal, best practice or regulatory reasons. Such changes will be effective with or without prior notice to you. You can review the most current version of this Agreement by clicking on the “Agreement” link located on the Licensed Software or on clyze.com. You are responsible for checking this Agreement periodically for changes. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in agreement or compliance with this Agreement, you may terminate this Agreement in accordance with Section 7 and must immediately uninstall the Licensed Software and destroy all copies of the Licensed Software. Your continued use of the Licensed Software following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.
Clyze may modify the Licensed Software for any reason or without any specific reason, at any time and at its entire discretion, in particular for technical reasons such as updates, maintenance operations and/or resets to improve and/or optimize the Licensed Software. You agree that the modified Licensed Software may install or download automatically. You agree that Clyze may no longer support previous versions of the Licensed Software upon availability of an updated version. Clyze's partners and associated service providers shall have no obligation to furnish any maintenance or customer support with respect to the Licensed Software. Clyze also reserves the right to amend the Rules of Conduct set out in Section 1 to place limits on the use of the Licensed Software.
9. MISCELLANEOUS
9.1 Export Controls. The Licensed Software is subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States and foreign agency or authority relating to the Licensed Software and your use of the Licensed Software. The Licensed Software may not be re-exported, downloaded or otherwise exported to, or installed by a national or resident of, any country to which the United States has embargoed goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
9.2 Severance. If any court of competent jurisdiction or competent authority finds that any provision of this Agreement is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable to reflect Clyze's initial intentions.
9.3 No Waiver. No failure or delay by Clyze (or its licensors) to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Waiver of a right or remedy may be considered to have taken place only after signing of a written statement to this effect by Clyze or by the User.
9.4 Governing Law. To the extent permitted by applicable law, this Agreement, and any disputes or claims arising out of or in connection with it, or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of the United States and the State of Ohio, without giving effect to any principles of conflicts of laws. This Agreement shall not be governed by the United Nations Conventions of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded from any interpretation of this Agreement.
9.5 Force Majeure. Except for payment obligations, neither party will be responsible for failure of performance due to an event beyond the affected party's reasonable control, including accidents, severe weather events, acts of God, actions of any government agency, pandemic, acts of terrorism, or the stability or availability of the Internet or portions thereof.
For any questions concerning this Agreement, you may contact Clyze at the following address: support@clyze.com.