IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU AND WINMAGIC CORP. AND ITS AFFILIATES AND SUBSIDIARIES (“WinMagic”)
As used in this Software License Agreement (“Agreement”), the term “Software” means the machine-readable object code SecureDoc™ encryption evaluation software (in all variants, modifications, updates, editions, copies and versions) included on the CD provided with this License or available on the Web, excluding, however any software (“Third Party Software”) that is subject to a separate license or user agreement offered or granted by a party other than WinMagic. “Documentation” means the published user manuals and documentation accompanying the Software. “Licensed Materials” means, together, the Software and the Documentation.
TITLE: The Licensed Materials, including any related copyright, trademark, patent rights or other intellectual property rights applicable to or derived from the Licensed Materials are owned by WinMagic and remain, without exception, the sole and exclusive property of WinMagic. The Licensed Materials are protected by Canadian, United States and international copyright laws and applicable treaties.
GRANT OF LICENSE: Subject to the terms and conditions of this Agreement, WinMagic grants to you a nonexclusive, non-transferable, non-sub-licensable, temporary and time-limited license to use the Licensed Materials (the “License”).
ACCEPTANCE OF LICENCE: By opening the sealed package containing the Licensed Materials or by agreeing to be bound to this Agreement prior to downloading the Licensed Materials from the Web or prior to installation, you acknowledge and agree that you have had the opportunity to read this Agreement, have understood it, and confirm that you will be bound by each of the terms and conditions of this Agreement. If you disagree with any term or condition of this Agreement, or do not agree to be bound by the terms and conditions of this Agreement, WinMagic hereby revokes any interests or rights you may have gained in respect of the Licensed Materials and requires that you return the Licensed Materials to their place of purchase within 10 days of having opened the package containing the Licensed Materials or, if applicable, stop downloading the Licensed Materials immediately. If the download was completed, the software install package(s) must be permanently deleted from the computer(s).
THIRD PARTY SOFTWARE: Any Third Party Software incorporated into or accompanying the Software is owned by a party other than WinMagic and is protected by Canadian, United States and international copyright laws and applicable treaties. WinMagic has obtained such rights, permissions and consents as are necessary for WinMagic to use the Third Party Software in conjunction with the Software as licensed by this Agreement. However, all such Third Party Software incorporated into or accompanying the Software is or may be subject to a separate software licensing agreement containing separate and discrete terms, conditions and restrictions governing your right to use the Third Party Software. Irrespective of your acceptance and/or use of the Software, you will not receive or gain any rights, privileges or entitlements in respect of the Third Party Software greater than such rights, privileges or entitlements as WinMagic is able to provide to you pursuant to this Agreement (each as may be amended, from time to time) and you agree and confirm to use the Third Party Software only in conjunction with the Licensed Materials, as permitted by this Agreement, and as permitted by the more restrictive of any Third Party Software license agreement applicable to your and/or WinMagic’s use of the Third Party Software. In addition, by acceptance of the License in connection with the Licensed Materials, you are accepting any license applicable to the Third Party Software and, in connection with any such license applicable to the Third Party Software the provisions entitled “Acceptance of License” applying in connection with the license to any such Third Party Software, mutatis mutandis.
OPEN SOURCE SOFTWARE: As provided or made available to you, the Software and Third Party Software may be accompanied by Open Source Software that has been used to develop a Linux-based operating system on which the Software and Third Party Software run. Such Open Source Software forms, and is distributed as, a separate and independent software program from the Software and Third Party Software, even though such Open Source Software may have been aggregated with the Software and the Third Party Software for purposes of distribution only. Such Open Source Software is subject to the terms and conditions of the applicable open source licenses and notices set out at the following URL: www.winmagic.com/products/licenses/open_source (“Open Source Licenses”). By agreeing to be bound by this Agreement in accordance with the provisions set out above in the section entitled “Acceptance of License”, you agree to the terms and conditions of the applicable Open Source Licenses as they relate to such Open Source Software.
RESTRICTED USE: You may not modify, amend, reverse engineer, decompile, disassemble, or distribute (whether commercially, for-profit or otherwise), sublicense, resell or transfer the Software or the Third Party Software (together, the “Licensed Software”) or create or compile any software to work in conjunction with or as a companion to the Licensed Software, including, but not limited to, any installer programs without the prior written consent of WinMagic which consent may be unreasonably withheld by WinMagic at its sole and exclusive discretion. The Licensed Software may not be copied.
You agree that WinMagic, with reasonable notice to you, is entitled to audit your compliance with this Agreement. Any costs incurred in connection with this audit will be borne by WinMagic, unless the audit reveals a material breach of the terms and conditions of the Agreement, in which case you agree to pay all fees for such audit, in addition to all other costs associated with remedying your breach of this Agreement. Audits will be carried out during regular business hours and WinMagic will endeavor to avoid adversely affecting your business operations.
PRICE AND PAYMENT: The purchase price (if any) for the Licensed Materials and the Third Party Software (together, the “Software Package”) does not include applicable federal, state, provincial and local taxes (other than taxes on WinMagic’s income) and the costs of delivery of each item of the Software Package and you are required to pay such amounts, as applicable, in addition to the purchase price for the Software Package at the time of purchase. If you do not pay any amount that is due under this Agreement when payable, you agree to pay WinMagic interest of 18% per annum, calculated and payable monthly (or such lesser amount as may be required by applicable law) in addition to any unpaid amounts (including accrued interest) until all amounts payable by you have been paid in full.
WARRANTY: WINMAGIC MAKES NO WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, WINMAGIC MAKES NO REPRESENTATIONS OR WARRANTIES, WHATSOEVER, WHETHER EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION WITH ANY THIRD PARTY SOFTWARE.
LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES WILL WINMAGIC OR ANY OF WINMAGIC’S AFFILIATES BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY CLAIMS RELATING TO LOST PROFITS, BUSINESS OR OPPORTUNITIES, EVEN IF WINMAGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE. FOR GREATER CERTAINTY, WINMAGIC SHALL NOT BE LIABLE FOR LOSS OF DATA IF YOU NEGLECT TO BACK UP YOUR SECUREDOCTM KEY DATABASE OR PROFILE OR IF YOU CANNOT RECALL YOUR PASSWORD.
CONFIDENTIALITY: Both WinMagic and you acknowledge that, in connection with this Agreement and the Software Package, each may have come into possession or contact with confidential information concerning the other (“Confidential Information”). You acknowledge that the Software Package incorporates proprietary and confidential information and trade secrets developed, acquired by or licensed to WinMagic. Each of the WinMagic and you will take all reasonable precautions necessary to safeguard the Confidential Information of the other including: (i) taking all such actions as a party may take to protect its own confidential information; (ii) and specifically in regards to WinMagic’s Confidential Information, you agree to take such other measures as WinMagic or its authorized representatives may reasonably request from time to time. You will not allow the removal, copying or defacement of any confidentiality or proprietary notice placed on the Licensed Materials. The placement of copyright notices on any portion of the Licensed Materials will not constitute publication or otherwise impair their confidential nature.
Neither party will disclose, in whole or in part, any item of the other’s Confidential Information that has been designated as confidential to any individual, entity or other person, except to those of its employees or consultants who (i) require access for authorized use of the same, and (ii) agree to comply with any use and non-disclosure restrictions applicable thereto under this Agreement or otherwise. If requested by WinMagic, you will cause such employees and consultants to execute appropriate confidentiality agreements that would ensure the compliance with any such employees or consultants with the provisions set out herein. You acknowledge that any unauthorized use or disclosure of the Licensed Materials and/or the Confidential Information of WinMagic may cause irreparable damage to WinMagic and its licensors. If any unauthorized use or disclosure occurs, you will immediately notify WinMagic and take, at your expense, all steps which may be necessary and/or available to recover the Licensed Materials and/or the Confidential Information and to prevent their subsequent unauthorized use or dissemination. Neither party will have any obligations in respect of any such portion of the Confidential Information which it can demonstrate (i) was known to it or was independently developed before receiving the Licensed Materials, (ii) was lawfully obtained from a third party under no confidentiality obligation in respect of the same; or (iii) became available to the public other than as a result of any act or omission by a party or any of that party’s employees or consultants subject to this confidentiality obligation.
EXPORT RESTRICTIONS: The Software Package is subject to export and import restrictions. Currently, export of the Software Package outside of Canada and the United States requires prior approval of the appropriate government authorities. You agree to fully comply with all applicable Canadian and United States laws and regulations applicable to the export and import of the Software Package. You agree that you will not (re-)export the Licenses Materials to the following countries without an individual export license, to be coordinated and applied for by WinMagic Inc.: Any country on Canada’s Area Control List; any country subject to Canadian Economic Sanctions; Afghanistan, Belarus, Cote d’Ivoire, Cuba, Democratic Republic of the Congo, Democratic People’s Republic of Korea [North Korea], Eritrea, Guinea, Iran, Iraq, Lebanon, Liberia, Libya, Myanmar [Burma], Pakistan, Sierra Leone, Somalia, Syria, Sudan and Zimbabwe.
U.S. GOVERNMENT RESTRICTED RIGHTS: Use, modification, reproduction, release, display or disclosure by the Government of the United States of America of the Licensed Software is subject to the restrictions set out in this Agreement and United States Federal Regulations, including but not limited to 48 C.F.R. Section 12.12 and Subsection 227.7202-3.
TRANSFER: WinMagic may sell, transfer or assign this Agreement and WinMagic’s rights pursuant to this Agreement to an affiliate, a subsidiary or third-party without notice to you. With the prior written consent of WinMagic (not to be unreasonably withheld), you may transfer and assign this Agreement and your right pursuant to this Agreement to another party provided that: (i) that party become subject to the terms and conditions of this Agreement; and (ii) you are not sublicensing, leasing, selling or otherwise transferring the Licensed Software to any third party for the purposes of monetary gain.
TERMINATION: This License is effective from the Evaluation Start Date and will remain in force for thirty (30) days (the “Evaluation Period”). Please contact WinMagic in writing for approval to extend the Evaluation Period beyond thirty (30) days. You may terminate the License and this Agreement at any time by destroying the Licensed Materials, and any copies thereof, and uninstalling the Software from your computer. WinMagic may terminate this Agreement, the License and any rights you may have in connection with the Third Party Software at any time if you breach any term, condition or provision of this Agreement, if you become insolvent, bankrupt or threaten to become insolvent or bankrupt, or for any reason where WinMagic, acting reasonably, believes that its rights and interests pursuant to this Agreement, the License or otherwise, or in connection with the Software Package, may be at risk from you or any third-party.
GOVERNING LAW: This Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein. You agree that any action or lawsuit commenced in connection with this Agreement or in connection with the subject matter hereof, will be brought before the courts of the Province of Ontario.
MISCELLANEOUS: If any provision of this Agreement is held to be unenforceable, in whole or in part, such determination will not affect the validity of any other provisions of the Agreement. The Agreement constitutes the complete and entire statement of the agreement between you and WinMagic with respect to its subject matter and supersedes all prior writings, discussions, representations or understandings.
AMENDMENTS: This Agreement may be amended unilaterally by WinMagic from time to time. Notice of any such amendment will be posted on the WinMagic website. Any such amendment will become effective 30 days after the date on which such amendments have been posted on WinMagic’s website. If you continue to use the Licensed Materials after expiration of the 30 days from the date on which such amendments have been posted on the WinMagic website, you agree to be bound by the amended terms of this Agreement, without reservation. If you disagree with any amendments to this Agreement as posted on WinMagic website, we require that you discontinue use of the Licensed Materials immediately and comply with the provisions set out above entitled “Acceptance of License”.
If you have any questions concerning this Agreement, or if you desire to contact WinMagic for any reason, please write to:
5770 Hurontario Street, Suite 501
L5R 3G5 Canada
Tel.: +1 905 502-7000
Fax: +1 905 502-7001