Absolute Manage Agreement
November 16, 2011. Version 4.0
BY CLICKING THE ACCEPT BUTTON OR DOWNLOADING THE SOFTWARE, YOU AGREE TO BE BOUND BY AND BECOME A PARTY TO THIS END USER LICENSE AGREEMENT (“EULA” OR “AGREEMENT”). ABSOLUTE SOFTWARE’S ACCEPTANCE AND FULFILLMENT OF YOUR ORDER IS EXPRESSLY CONDITIONED ON YOUR AGREEMENT TO THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST CLICK THE BUTTON THAT INDICATES THAT YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT AND YOU MAY NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
Immediately below is a list of the Absolute companies that may be contracting with you based on the country or region where you are located, as well as the choice of law and the location for resolving disputes with such Absolute company.
Asia, Australia, Canada, Mexico, Central America, South America, and the Caribbean: Your agreement is with Absolute Software Corporation, a company incorporated under the laws of the Province of British Columbia, Canada. The interpretation of this Agreement is governed by the laws of the Province of British Columbia and the federal laws of Canada and such laws apply to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of your province of residence in Canada, or if you live outside Canada, the laws of the country or region in which you use the product purchased. You and we irrevocably consent to the exclusive jurisdiction and venue of the applicable courts located in Vancouver, British Columbia for all disputes arising out of or relating to this contract.
Europe, Middle East and Africa: Your agreement is with Absolute Software EMEA Limited, a company incorporated under the laws of the United Kingdom. The interpretation of this Agreement is governed in accordance with English law and such law applies to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of the country or region in which you use the product purchased. You and we irrevocably consent to the exclusive jurisdiction and venue of the English courts for all disputes arising out of or relating to this contract.
United States: Your agreement is with Absolute Software, Inc., a company incorporated under the laws of the State of Washington, USA. Washington state law governs the interpretation of this contract and applies to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of your state of residence in the United States, or if you live outside the United States, the laws of the country or region in which you use the product purchased. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in King County, Washington, USA for all disputes arising out of or relating to this contract.
“YOU” MEANS THE INDIVIDUAL PERSON INSTALLING OR USING THE SOFTWARE ON HIS OR HER OWN BEHALF; OR, IF THE SOFTWARE IS BEING DOWNLOADED OR INSTALLED ON BEHALF OF AN ORGANIZATION, SUCH AS AN EMPLOYER, “YOU” MEANS THE ORGANIZATION FOR WHICH THE SOFTWARE IS DOWNLOADED OR INSTALLED, AND THE PERSON INSTALLING OR USING THE SOFTWARE REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO DO SO ON YOUR BEHALF.
1. SOFTWARE AND DOCUMENTATION. “Software” means the software program accompanying or provided under this EULA, together with the associated media, corresponding Documentation, technical configurations, and technical data. “Documentation” means the end user manual and other documentation (including print and online), if any, provided to you with the Software. The Software shall be provided to you strictly in machine-readable object code format. No source code or technical-level documentation are licensed under this Agreement.
2. LICENSE GRANT. Provided you comply with all terms and conditions of this EULA and pay the applicable license fee along with all applicable sales, use, excise or other taxes, Absolute grants you a non-exclusive, non-transferable license to install, store, load, execute and display (collectively, "Use") the Software for internal Use on that number of Seats for which you have purchased a license in accordance with the terms of this agreement and the Documentation. “Seats” means the number of licensed copies of the Software specified on an accepted purchase order, which will limit Use to the number of devices as indicated on such purchase order or order confirmation. The Software is licensed solely for internal use within your organization; any other use, including for third parties or for commercial purposes, is expressly prohibited. If you have purchased a Term License this license expires at the end of the term specified in your purchase order or sales contract, as applicable, and as provided in your order confirmation. “Term License” means a license for a limited period of time. If you have purchased a Perpetual License, this product is licensed to you in perpetuity with no specified expiration. “Perpetual License” means a license with no specified term or expiration. With respect to your internal use of the Software as permitted above in this Section 2, you may permit third party consultants and contractors (such as your third-party supplier(s) of information services) (“authorized users”) to use the Software, provided that (i) all such use is in accordance with the terms and conditions of this EULA, and (2) you assume full responsibility and liability for any use of the Software by such third parties in excess of the number of licenses purchased or otherwise in violation of this EULA. The Software may be relocated to and Used on another single CPU within your organization, provided no more than one (1) copy per license is Used on more than one (1) CPU at any one time.
3. THIRD PARTY CODE. The Software is delivered with certain items of independent, third-party code that are licensed under separate terms provided by the authors (“Third Party Code”). This Third Party Code is licensed under the terms of the license that accompanies such Third Party Code. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for any Third Party Code delivered with the Software. None of the terms of this Agreement apply to such Third Party Code. In particular, nothing in this Agreement governs or restricts your right to copy, modify, and distribute such Third Party Code; rather, the terms of the license accompanying such Third Party Code fully govern such matters. ALL THIRD PARTY CODE IS LICENSED “AS IS,” WITHOUT WARRANTY OF ANY KIND.
4. GEO-LOCATION. Determining the location of computing devices may by implication also determine the location of individual persons who use or possess those devices. The laws of your jurisdiction likely require the unambiguous consent of such individuals before their movements may be legally tracked. You hereby release Absolute from liability, and acknowledge your sole responsibility, for any unauthorized or illegal use of the geo-location feature, including your unauthorized or illegal tracking of an individual.
5. COPIES. You may make copies of the Software provided that any such copy: (i) is created as an essential step in the utilization of the Software as licensed under this EULA, or (ii) is only for archival purposes to back-up the Software. All trademark, copyright, and proprietary rights notices must be faithfully reproduced and included by you on such copies. You may not make any other copies of the Software.
6. OTHER RESTRICTIONS. Absolute reserves all rights not expressly granted to you. Without limiting the generality of the foregoing, you shall not nor shall you permit any other party to: (i) disassemble, de-compile, reverse engineer, or translate any part of the Software, or otherwise attempt to reconstruct or discover the source of this Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or (ii) modify or create derivative works based upon the Software, or (iii) externally distribute, sublicense, resell, encumber, or otherwise transfer this Software, or (iv) rent, lease, lend, or use the Software for timesharing or bureau use, or (v) allow a third party to copy, access, or use the Software (except as expressly provided in Section 2 of this EULA), or (vi) disclose the results of any benchmark test of the Software to a third party without the prior written approval of Absolute, or (vii) take any actions that would cause the Software to become subject to any open source or quasi-open source license agreement.
7. OWNERSHIP. You acknowledge that all title and intellectual property (including Intellectual Property Rights) in and to the Software (including all copies thereof) are owned by Absolute or its licensor(s), if any. “Intellectual Property Rights” means any and all (i) proprietary rights provided under patent law, copyright law, trade-mark law, design patent or industrial design law, semi-conductor chip or mask work law, or any other applicable statutory provision or otherwise arising at law or in equity anywhere in the world, including, without limitation, trade secret law, that may provide a right in works, software, source code, object code, marks, ideas, formulae, algorithms, concepts, methodologies, techniques, inventions, or know-how, or the expression or use thereof, (ii) applications, registrations, licenses, sublicenses, agreements, or any other evidence of a right in any of the foregoing, and (iii) past, present, and future causes of action, rights of recovery, and claims, including claims for damage, accounting for profits, royalties, or other relief relating, referring, or pertaining to any of the foregoing. The Software is protected by Canadian, U.S. and other international laws, including without limitation patent, copyright and trademark law and international treaty provisions. The Software is licensed to you, not sold.
8. PRICES & PAYMENTS. The prices and fees for the Software, any support and maintenance and other deliverables are set forth in an order placed by you and accepted by Absolute. You may not withhold or "setoff" any amounts due hereunder. Absolute reserves the right to suspend service and deliveries until all amounts due are paid in full. Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month or fraction thereof until paid. Prices quoted do not include, and you shall pay, indemnify and hold Absolute harmless from, all sales, use, gross receipts, value-added, GST, personal property or other tax (including interest and penalties imposed thereon) on the transaction contemplated herein. At your option, Absolute or its authorized agent will either physically ship or electronically deliver the Software and Documentation to you. You are deemed to have received and accepted the Software and Documentation upon physical or electronic delivery as the case may be.
9. COPYRIGHTS; TRADE SECRETS. You acknowledge and agree that the structure, sequence, and organization of the Software (including but not limited to any technical configurations, technical data, images, photographs, animations, video, audio, music, and text) are proprietary to and are the valuable trade secrets of Absolute and its licensors. You agree to hold such trade secrets in confidence. Unless explicitly set forth in a written agreement executed between Absolute and you, you may not remove from the Software or alter any of the trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings to the Software.
10. EVALUATION LICENSE. This Section applies to you if the Software is licensed to you for evaluation or demonstration purposes. An “Evaluation License” is a limited license that provides you an opportunity to try the Software before buying a full license. A temporary activation key will be issued to you for this license specifying the number of Seats, and the evaluation period. The Software may only be used for evaluation purposes and not for commercial use. The Software is licensed to you only for the specified evaluation period, which will begin on the date that the Software is first downloaded by or delivered to you. This evaluation license entitles you to install ten (10) copies of the Software on ten CPUs for internal evaluation purposes only. The Software may contain an automatic disabling mechanism. Your right to use the Software is limited in accordance with the terms under which you received the Software. If no period of use is specified, then your right to use the Software shall terminate fourteen (14) days from receipt of the Software, at which time you must return or destroy the Software.
11. ACTIVATION KEY. The use of the Software may require an “activation key” or “registration code” from Absolute or its authorized reseller. The activation key may be a printable digital key, a non-printable file, or any other mechanism used by Absolute for license activation purposes. You agree that you will not attempt to “hack,” “crack,” or otherwise override this activation key.
12. UPDATES AND UPGRADES. This EULA governs any Software Updates and Upgrades that may be provided to you in accordance with Absolute’s then-current maintenance and support policies. “Update” means a release of the Software that includes a feature change, minor increased functionality or minor improvements (including bug fixes). “Upgrade” means a release of the Software that includes an additional feature or significant improvements being added to the Software. Typically Upgrades will be those designated by Absolute as a change in the version number, being the number to the left of the decimal point in the Software version number.You may use such Updates or Upgrades only in conjunction with your then-existing Software licensed under this EULA. The Software and all Updates and Upgrades are licensed as a single product and such Updates and Upgrades may not be separated from the Software to exceed the scope of your original license. Any other software that may be provided with the Software that is associated with a separate end-user license agreement is licensed to you under the terms of that separate license agreement.
13. SUPPORT AND MAINTENANCE. If you purchased a Term License you will receive Support and Maintenance for the duration of the term of your license. “Support and Maintenance” means Updates, Upgrades, telephone, online and email support provided in accordance with Absolute’s then relevant policies. If you purchased a Perpetual License, nothing in this EULA entitles you to any Support and Maintenance, or new versions of the Software unless otherwise specified in your order confirmation. You may purchase Support and Maintenance on an annual term basis. Absolute will, using commercially reasonable efforts, provide customer and technical support to you in the languages and during the hours of operation expressly indicated by us online, and is provided via Absolute’s Customer Support team. Absolute reserves the right to modify the specific content of its customer and technical support at any time without notice.The terms of this EULA govern any Support and Maintenance you may receive from Absolute for the Software
14. AUDITS. Once per year, you shall perform a self-audit by forwarding a current status report generated by Absolute verifying that the Software is being used pursuant to the provisions of this EULA including any quantitative limitations. In addition to the foregoing annual self-audit, at Absolute’s request, but not more than once each year and upon reasonable notice, you will permit Absolute to perform a physical audit of your records and devices to confirm your compliance with this Agreement. Absolute will conduct any physical audit during your normal business hours and without undue inconvenience to you or your employees, and you agrees to cooperate with Absolute to enable Absolute to do so. You will immediately pay Absolute the amount of any additional fees that are found to be payable as a result of any audit. In addition, if an audit reveals that you have underpaid any fees by more than five percent of the amount properly payable, then you will reimburse Absolute for its reasonable costs of conducting the audit.
15. SECURITY RESTRICTIONS. Each party agrees to inform the other of any information made available to the other party that is classified or restricted data and agrees to comply with the security requirements imposed by any state or local government, or by the United States Government, and shall return all such material upon request. Each party represents and warrants that its participation in this Agreement does not conflict with any contractual or other obligation of the party or create any conflict of interest prohibited by the U.S. Government or any other government and shall promptly notify the other party if any such conflict arises during the term of your license.
16. COMPLIANCE WITH LAWS. You agree to comply with all local, state, national and foreign laws, treaties and regulations applicable to you and the place where the Software is deployed, including those laws and regulations related to data protection, international communications and the transmission and protection of technical or personal data.
17. PROFESSIONAL SERVICES. At your request, Absolute may agree to provide you with professional services. The following terms and conditions will apply to any professional services pursuant to a fully executed Statement of Work, except as otherwise agreed to by the parties in writing:
(a) Fees. You will pay Absolute any related professional services fees within 30 days after the date of Absolute’s invoice, unless otherwise specified in the Statement of Work. Any other payment terms in the Statement of Work will also apply.
(b) Expenses. You will reimburse Absolute for reasonable expenses incurred in performing the professional services, including travel and accommodation costs, long distance telecommunications costs, courier fees, reproduction costs, and other reasonable out-of-pocket costs. At your request, Absolute will give you copies of receipts or other customary expense documentation for expenses incurred.
(c) Overdue Payments. Any overdue payment relating to professional services will bear interest at a rate of one and one-half percent (1-1/2%) per month, or eighteen (18%) per annum, or portion thereof that the payment is overdue, up to a maximum of the highest interest rate permitted by applicable laws.
(d) Taxes. Professional services fees do not include any taxes, and you agree to pay any sales, use, value added or other taxes or import duties (other than Absolute’s corporate income taxes) based on or due as a result of any amounts paid to us under this Agreement.
(e) Start-Up Costs and Ramp-Down Costs. Unless otherwise set forth in a Statement of Work, if you stop or postpone the projects set forth in a Statement of Work you will pay for all professional services rendered up to the stop or postponement date and will pay for any start up costs associated with re-activating resources to complete the subject Statement of Work and any ramp-down costs associated with removing resources from the subject Statement of Work;
(f) Tools and Place of Work. Absolute will provide all supplies, facilities, materials and other things which it requires to perform the professional services, except for those things which you are required to supply as set out in the Statement of Work. You will also provide us with any access to your premises, facilities and systems which we require to perform the professional services.
(g) Changes. No changes will be made to the professional services, the Deliverables or the Statement of Work except by a written amendment signed by you and Absolute. Any changes to the professional services, the Deliverables or the Statement of Work may delay completion of the professional services and/or increase the related fees. “Deliverables” means the deliverables to be delivered in accordance with a Professional Services Statement of Work or in accordance with a fixed, standard package of professional services then offered by Absolute.
(h) Acceptance. Unless otherwise specified in a Statement of Work, following receipt of each Deliverable, you will have ten (10) days (the “Acceptance Period”) to perform acceptance testing of that Deliverable in accordance with the standards and procedures set out in the Statement of Work, if the Deliverable does not pass the acceptance test, you must give Absolute written notice rejecting the Deliverable within the Acceptance Period, if you do not give Absolute written notice rejecting any Deliverable by the end of the Acceptance Period, or if you deliver written notice accepting the Deliverable, such Deliverable will be deemed accepted on that date, if you give Absolute written notice rejecting any Deliverable within the Acceptance Period, then within 30 days after receipt of your notice, Absolute will make any reasonable corrections or changes and resubmit the Deliverable to you for further acceptance testing and you will cooperate with Absolute to isolate, identify and resolve any problems in the Deliverables. If Absolute reasonably determines that the inability of any Deliverable to pass acceptance testing is due to third-party products (collectively, “System Problems”) and not to any material defect in that Deliverable, Absolute and you will jointly attempt to identify the source of the System Problems and possible workarounds or solutions and, in addition to the fees and expenses for the professional services, you will pay Absolute for any extra work related to the System Problems at its then-current hourly rates plus disbursements, taxes and all related costs and expenses, and notwithstanding the foregoing, Deliverables in the nature of training services are deemed accepted upon delivery.
(i) Intellectual Property. Absolute owns and retains all title to, ownership of, and all right, title and interest (including Intellectual Property Rights) in or to any Deliverable on the same basis as it does with respect to the Software, and if it is at any time determined that you own any right, title or interest (including any Intellectual Property Rights) in or to any Deliverable (other than the right to use it under the license granted by this Agreement), you will hold that right, title or interest in trust for Absolute and will, at our cost, transfer it to us at our request, and you will also waive any non-transferable Intellectual Property Rights such as moral rights.
(j) Relationship. In providing any professional services and Deliverables, Absolute is acting as an independent contractor and not as your agent, partner, or joint venturer for any purpose. Neither you nor we will have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other.
(k) Non-Hire. You acknowledge that, in performing professional services, Absolute would be providing you with access to its professional services staff to attend at your premises for a period of time, and that every member of such staff is a valuable resource to Absolute. Accordingly, you agree not to employ or solicit employment of any person who is Absolute’s employee or an employee of any of its authorized third parties without our prior written consent, unless the person in question has ceased to be employed by Absolute or its authorized third party for a period of 90 days.
(l) Professional Services Disclaimer. ALTHOUGH ABSOLUTE’S PROFESSIONAL SERVICES MAY INCLUDE INSTALLATION AND CONFIGURATION OF ITS SOFTWARE ON YOUR COMPUTERS, YOU AGREE THAT YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR THE MAINTENANCE, CONTROL, OPERATION AND SECURITY OF YOUR NETWORK SYSTEMS, INCLUDING THE RESPONSIBILITY OF MONITORING AND MAINTAINING THE SOFTWARE ON YOUR DEVICES TO ENSURE THAT IT CONTINUES TO FUNCTION PROPERLY. YOU ALSO ACKNOWLEDGE THAT THE INTERNET IS NOT IN ITSELF A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF YOUR SECURITY.
(m) Training Services. If training credits are included on your order, Absolute will provide you with any Training Services that you purchase from Absolute, at a mutually acceptable time. “Training Services” mean training services offered by Absolute from time to time through per-seat, pre-paid sums known as “training credits”, which may be purchased from Absolute and which expire after a specified period of time. All Training Services must be exchanged for an available seat in a Training Services class within one (1) year from the date of purchase of the training credits relating to such Training Services, or such credits will expire and no refund will be available to you for such credits or Training Services. Training Services are only available for the Software. Absolute will use commercially reasonable efforts when scheduling classes of Training Services to provide sufficient opportunity for you to exchange training credits for Training Services.
18. RENEWALS. You agree that Absolute or its authorized reseller may contact you regarding the renewal of your license term, support and maintenance, and professional services. You hereby agree that Absolute and its authorized resellers may use your personal information for this purpose.
(a) Non-infringement Warranty. Absolute represents and warrants that the Software, when properly used as contemplated herein, will not infringe or misappropriate any Canadian or United States copyright, trademark, patent, or the trade secrets of any third persons. Upon being notified of such a claim, Absolute shall (i) defend through litigation or obtain through negotiation the right to continue using the Software; (ii) rework the Software so as to make it non-infringing while preserving the original functionality, or (iii) replace the Software with functionally equivalent software. If none of the foregoing alternatives provide an adequate remedy, Absolute may terminate all or any part of this EULA with no further liability to you except for a pro-rated refund of the fees paid by you under this EULA representing the remainder of the unused term if a Term License or recover amounts paid for the infringing Software if a Perpetual License, subject to the limitations of Absolute’s liability listed herein. Absolute represents and warrants that the Software will function substantially in accordance with the applicable Documentation.
(b) Non Performance Warranty. Except as specified in subsection (a) above, Absolute is providing the Software, Third Party Code, Maintenance and Support, services and other deliverables hereunder strictly on an "AS IS" basis without any express or implied warranty, guarantee or other assurance of quality, conformity with specifications, reliability or functionality. ABSOLUTE HEREBY DISCLAIMS WITH RESPECT TO ALL LICENSED PRODUCTS, MAINTENANCE AND SUPPORT SERVICES AND OTHER DELIVERABLES PROVIDED HEREUNDER, ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. It is your responsibility to purchase and supply all required hardware and third-party software outlined in the Documentation and supply sufficiently skilled resources to maintain the Software within your organization.
(c) Not Fault Tolerant. THE SOFTWARE IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR ENVIRONMENTAL DAMAGE. TO THE EXTENT YOU USE THE SOFTWARE IN SUCH ENVIRONMENT, YOU EXPRESSLY ASSUME ALL RISK THEREFORE.
(d) Media Limited Warranty. If the Software is delivered to you on a disc or other physical media, Absolute warrants that for the first sixty (60) days of the term of this license, that media will be free from defects in materials and workmanship. Absolute’s entire liability and your exclusive remedy for any breach of the foregoing warranty shall be, at Absolute’s option, either (i) replacement of the defective media, or, (ii) return of the amount you paid for the license. You must return the defective media to Absolute at your expense with a copy of your receipt or order confirmation. This limited warranty is void if the defect has resulted from accident, abuse, or misuse of the media. Any replacement media will be warranted solely for the remainder of the original warranty period.
20. NO OTHER WARRANTIES. ANY EXPRESS WARRANTY MADE OUTSIDE OF THIS EULA IS EXCLUDED AND SUPERCEDED. NEITHER ABSOLUTE NOR ITS LICENSORS REPRESENT OR WARRANT THAT THE SOFTWARE WILL SATISFY YOUR REQUIREMENTS OR THAT IT IS WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. Some jurisdictions do not allow certain disclaimers or limitations of warranties, so some of these may not apply to you.
21. NON-ABSOLUTE PRODUCTS. ABSOLUTE DOES NOT WARRANT NON-ABSOLUTE PRODUCTS. ANY SUCH PRODUCTS ARE PROVIDED ON AN “AS-IS” BASIS. ANY WARRANTY SERVICE FOR NON-ABSOLUTE PRODUCTS WILL BE PROVIDED BY THE PRODUCT MANUFACTURER IN ACCORDANCE WITH ANY APPLICABLE MANUFACTURER’S WARRANTY.
22. EXCLUSION OF CERTAIN DAMAGES. TO THE FULL EXTENT PERMITTED BY LAW, NEITHER ABSOLUTE NOR ITS LICENSORS SHALL IN ANY CASE BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, BUSINESS, OR DATA, COSTS OF COVER, OR EQUIPMENT DOWNTIME ARISING FROM OR RELATING TO THIS EULA OR THE USE OR INABILITY TO USE THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION AND EVEN IF ABSOLUTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS DISCLAIMER OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
23. LIMITATION OF LIABILITY. THE AGGREGATE LIABILITY OF ABSOLUTE OR ITS LICENSORS ARISING FROM OR RELATING TO THIS EULA OR THE USE OR INABILITY TO USE THE SOFTWARE (REGARDLESS OF THE FORM OF ACTION OR CLAIM, WHETHER CONTRACT, WARRANTY, TORT AND/OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF ALL FEES PAID BY YOU HEREUNDER EXCLUDING ANY FEES PAID FOR RENEWAL OF ANY OF THE LICENSES.
24. YOUR INDEMNIFICATIONS OF ABSOLUTE. You hereby agree to indemnify and save harmless Absolute from and against all liabilities, actions, proceedings, claims, causes of action, demands, debts, losses, damages, charges and costs, including reasonable legal costs, any amount paid to settle any action or to satisfy a judgment and expenses of any kind and character whatsoever, in any way incurred by Absolute: in respect of any actual or threatened civil, criminal or administrative action or proceedings (“Proceedings”) to which Absolute is made a party in connection with or arising out of (i) your Use of the Software or any action authorized by you that is carried out by you or Absolute or (ii) as a result of your actions, misuse of the Software, non-compliance with the terms herein or failure to operate the Software in accordance with the Documentation; in respect of any Proceedings to which Absolute is made a party in connection with or arising out of your failure to remove the Software upon expiry of the License or this Agreement; in connection with or arising out of your Use of the Software in violation of any applicable law; arising from or in connection with any unauthorized use of certain third party hardware, operating system and software components or failure thereof.
Absolute will not be required to defend or indemnify you if, and to the extent that, the legal action would not have arisen but for (a) your combination of the Software with software, services or products not supplied by Absolute, (b) any repair or modification to the Software carried out by you or any third party, (c) any breach by you of any provision of this EULA, or (d) any refusal by you to install and use a non-infringing version of the Software.
25. SOLE REMEDY AND ALLOCATION OF RISK. YOUR SOLE AND EXCLUSIVE REMEDY AND ABSOLUTE’S SOLE AND EXCLUSIVE LIABILITY ARE SET FORTH IN THIS EULA. This EULA defines a mutually agreed-upon allocation of risk.
26. CONFIDENTIAL INFORMATION. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind but in no case less than reasonable care. “Confidential Information” means any information that the receiving party knows or has reason to know is the confidential or proprietary information of the disclosing party including, without limitation, the following information: technical and business information relating to inventions or products, research and development information, production manufacturing and engineering processes, costs, profit or margin information, employee skills and salaries, finances, customers, marketing, and production and future business plans. Each receiving party will limit access to the other party’s Confidential Information to those employees and consultants of the receiving party who have a need to know such information. Except as set out in this EULA, no party grants to the other any right, title or interest (including any Intellectual Property Rights) in or to its Confidential Information. The obligations of confidentiality set out in this EULA will not apply in respect of uses or disclosures of Confidential Information where (a) the owner consents in writing, (b) disclosure is required to comply with any applicable laws or judicial order, or (c) a party can establish with documentary evidence that, other than as a result of a breach of this agreement, the Confidential Information (i) is available in the public domain, (ii) was disclosed to it by a third party without violating confidentiality obligations, or (iii) was already known by it or was subsequently developed by it without any use of Confidential Information. Notwithstanding any of the foregoing, if the parties have executed a separate confidentiality agreement prior to the date of this EULA, the provisions of such separate confidentiality agreement will govern to the extent of any necessary inconsistency or conflict with this provision.
27. NOTICE. Any notice, request, authorization, direction, form or other communication to you from Absolute or to Absolute from you under this EULA will be given in writing and be delivered to the intended recipient by e-mail as follows: (a) in your case, to the e-mail address you specified when you installed and registered the Software and (b) in Absolute’s case, to the attention of Absolute’s Legal Department at the following address: c/o Absolute Software Corporation, Suite 1600, Four Bentall Centre, 1055 Dunsmuir Street, Vancouver, BC, Canada V7X 1K8 (e-mail: LegalNotices@absolute.com, fax: 604-629-7070). Notices by email will be deemed given and received on the transmission date of the e-mail.
28. SEVERABILITY. If any provision in this EULA is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of this EULA shall remain in effect.
29. TERM AND TERMINATION. This EULA is effective until terminated. You may terminate this EULA by uninstalling and returning the Software to Absolute along with all Documentation and original media. The licenses granted herein shall automatically terminate without notice if you fail to comply with any material provision of this EULA. In such event, you must immediately uninstall and return the Software, including all Documentation and original media, to Absolute. This shall not limit or affect any remedy available to Absolute for your breach of this EULA.
30. EXPORT LAWS. You acknowledge that the Software may be subject to applicable import and export regulations of the countries in which you do business. It is your responsibility to comply with applicable government requirements as they may be amended from time to time. Without limiting the generality of the foregoing, and regardless of any disclosure made by you to Absolute regarding an ultimate destination of the Software, you shall not export, re-export, transfer, divert, or disclose (directly or indirectly) the Software or any portion thereof to any country in violation of export laws or regulations or any other applicable law, regulation, or government order. Note that Software containing encryption may be subject to additional restrictions.
31. CONSTRUCTION. No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of this EULA.
32. ASSIGNMENT. You may not assign, sublicense, or transfer this EULA, the Software, or any rights or obligations hereunder without prior written consent of Absolute. Any such attempted assignment, sublicense, or transfer will be null and void. Absolute may terminate this EULA in the event of any such attempted assignment, sublicense, or transfer.
33. FORCE MAJEURE. Absolute will not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, riots, insurrections, fires, floods, storms, explosions, earthquakes, other natural disasters, outage or malfunction of telecommunications services, war, governmental action, or any similar cause that is beyond its reasonable control.
34. ENTIRE AGREEMENT. This EULA sets forth the entire understanding and agreement between the parties relating to its subject matter and may be amended only in a writing signed by both parties. Any waiver of or promise not to enforce any right under this EULA shall not be enforceable unless evidenced by a writing signed by the party making said waiver or promise. ANY TERMS AND CONDITIONS OF ANY PURCHASE ORDER OR OTHER DOCUMENT SUBMITTED BY YOU IN CONNECTION WITH THE SOFTWARE THAT ARE IN ADDITION TO, DIFFERENT FROM, OR INCONSISTENT WITH THE TERMS AND CONDITIONS OF THIS EULA ARE NOT BINDING ON ABSOLUTE AND ARE INEFFECTIVE. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON, OR OTHER PERSON IS AUTHORIZED BY ABSOLUTE TO MODIFY THIS EULA OR TO MAKE ANY WARRANTY, REPRESENTATION, OR PROMISE THAT IS DIFFERENT THAN OR IN ADDITION TO THE WARRANTIES, REPRESENTATIONS, OR PROMISES EXPRESSLY SET FORTH IN THIS EULA.
35. SURVIVAL. Without limiting the applicability of other terms and conditions of this Agreement, the terms of this Agreement that, by their nature, are intended to survive any purported or actual termination or expiry of this Agreement shall so survive, including Sections 7 and 19 through 35 (inclusive), and all additional terms and conditions necessary for the correct interpretation of the foregoing.
36. SPECIFIC CONSENTS. You confirm that you have familiarized yourself with the features of the Software and you specifically consent to the use of each of the features contained therein, and that you have either obtained all consents necessary from third parties to use the features of the Software or will not use those features unless and until such consents have been obtained. Without limiting the foregoing, you acknowledge and agree that use of override fleet management settings may override the settings of each device under management. Unless you opt out of the feature in your account settings, you authorize and permit Absolute to perform anonymized statistical analysis of access to and use of the Software for the purposes of measuring the effectiveness of the Software, optimizing performance, and ensuring compliance with this Agreement.