END USER LICENSE AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY AND MAKE SURE YOU UNDERSTAND IT BEFORE YOU AGREE TO IT.
This End User License Agreement (this “Agreement”) describes the terms on which we license the InvinciBull ®, as it may be updated by us from time to time (the “App”), whether running on a mobile device or a computer (each a “Device”).
This Agreement is a legal agreement between Finjan Mobile, Inc., a Delaware, USA, corporation (“FMI,” “we, “us,” “our,” or similar terms) and you individually, or (if you are authorized to acquire the App on behalf of your company or another organization) the entity you represent (in both instances, “you” or “yours”).
BY USING THE APP, CLICKING THE “AGREE”, “ACCEPT” OR “YES” BUTTON, LOADING THE APP OR OTHERWISE INDICATING ASSENT, YOU ARE AGREEING TO THIS AGREEMENT, WHICH WILL BECOME A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND FMI. By accepting this Agreement, you confirm that you are at least 18 years old and lawfully able to enter into and form contracts based on the applicable law in your jurisdiction.
- LICENSE GRANT
1.1 License. Subject to your continued compliance with this Agreement, we grant you a personal, revocable, limited, non-exclusive, non-transferable license (the “License”) to install the App on your Devices and to use the App for the duration of this Agreement for personal or business purposes.
1.2 Updates. We may update the App to add, remove or modify functionalities or features or provide new versions, with or without prior notice (each an “Update”). The License and this Agreement shall apply to the App as it may be modified with an Update. Updates will be installed automatically if you enable auto-updating through your device. Otherwise, the App will only be updated if you so choose at the time.
1.3 License Restrictions. You may not, or cause any third party to (a) modify, translate, decompile, create any derivative works of, copy, distribute, disassemble, broadcast, transmit, or publish, the App; (b) remove or alter any proprietary notices or labels or copy protection features from the App; or (c) license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, private label, or grant a security interest in, the App; or (d) otherwise use the App in any manner not expressly permitted in this Agreement.
1.4 Open Source. The App contains open source software. Such open source software and the applicable terms on which such software is licensed are identified in the “About” section of the App.
- Registration and Subscription; Renewal; Information and Password; Privacy.
2.1 Registration and Subscription. You may use the App without registering. However, if you register (“Register”) or register and subscribe (“Subscribe”) to the services provided through the App (a “Subscription”), then you may be entitled to additional benefits as specified in this Agreement, the App and our website. To Register or Subscribe, you must complete the process specified in the App, which includes submitting certain requested information including, if applicable, payment information and selecting the duration of your Subscription (the “Subscription Term”). If you Subscribe, you agree to pay the fees for your Subscription as specified in the App or elsewhere. Subscription fees are not refundable.
2.2 Subscription Renewal. If you Subscribe, your Subscription will automatically renew at the end of your Subscription Term, on the terms of the then current version of our End User License Agreement and for the list prices in effect at the renewal time. You authorize our payment processor to debit your credit card (or whichever permitted payment mechanism you provide) in advance for the price of such renewal. You agree to be responsible for being aware of the then current version of this Agreement, list prices and when your Subscription renews. You may turn-off auto-renewal in your account settings. Alternatively, if you do not want to automatically renew your Subscription, you need to cancel your Subscription at least 24 hours prior to the renewal time. If you purchased your Subscription through Google Play, the Apple Store or another online store, then you need to cancel through their platforms. Otherwise, you may cancel your Subscription through the App.
2.3 Information and Password. You agree that the information you provide to us in your registration and at all other times will be true, accurate, current, and complete and will be kept up to date. When you Register, you will be asked to create a password. You must not share your username and password with others.
(“Our Privacy Statement”), is hereby incorporated into this Agreement by reference. Please read Our Privacy Statement carefully for information relating to our collection, use, and disclosure of your personal information.
- License Usage Limits.
3.1 Data Limits. Your use of the App is limited to accessing specified amounts of data in a specified period of time. If you Register, then that data limit is increased and, if you Subscribe the data limit is unlimited during your Subscription Term and you may be entitled to additional benefits that are specified in the App or our website.
3.2 Compliance. You must comply with applicable domestic and international law when using the App and you may not use the App, without limitation, to upload, download, post, submit, distribute or facilitate the distribution of any content that may infringe someone’s intellectual property rights, rights to confidential information or privacy or which violates any export laws or any other right of a third party.
- Term and Termination.
4.1 Term. This Agreement and the License will commence on the date you agree to this Agreement and continue until terminated as provided herein.
4.2 Termination by FMI. You agree that we may terminate the License and this Agreement immediately if (a) you breach this Agreement or we are required to terminate this Agreement by law, or (b) for convenience with 5 days’ notice; however, if you have a Subscription, any notice of termination for convenience will not be effective until the end of your then current Subscription Term. These remedies are in addition to any other remedies we may have at law or in equity.
4.3 Termination by You. You may elect to not renew your Subscription as described above in “Subscription Renewal.” If, after terminating your Subscription or, if you do not have a Subscription, at any time, you wish to terminate the License and this Agreement, you can do so by stopping your use of the App and deleting all copies of the App from your Devices.
4.4 Effect of Termination. Once the License terminates, your right to use the App ends immediately and you must remove the App from each of your Devices. You are not entitled to any refund or other compensation for the termination of this Agreement and the License in accordance with its terms. Sections 2.4, 4, 5, 6 and 7 will survive the termination of this Agreement for any reason.
4.5 Injunctive Relief. A breach, whether threatened or actual, of this Agreement will cause us irreparable injury and such injury may not be quantifiable in monetary damages and we would not have an adequate remedy at law. As such, we are entitled, in addition to all other available remedies, to seek and be awarded an injunction or other appropriate equitable relief for any threatened or actual breach of this Agreement.
- Ownership Rights
5.1 Ownership. The App is protected by international copyright laws, treaties and other laws. We, and our licensors, own and retain all right, title and interest in and to the App, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights. This Agreement does not transfer to you any title to or in the App and you do not acquire any rights to the App, except for the License which is subject to your compliance with this Agreement.
5.2 Feedback. We welcome your feedback and suggestions about the App. If you provide us with any comments, bug reports, feedback, or proposed modifications to the App (“Feedback”), we shall have the right to use such Feedback at our discretion, including, but not limited to the incorporation of such suggested changes into the App. You hereby grant FMI a perpetual, irrevocable, worldwide, royalty-free, fully paid, nonexclusive license under all rights necessary to incorporate. use, and distribute your Feedback for any purpose.
- No Warranties; Third Party Materials; Liability Limits; Indemnity.
6.1 No Warranties. THE APP IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. YOU ASSUME RESPONSIBILITY FOR SELECTING THE APP TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE APP. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT THE APP WILL PROTECT AGAINST ALL POSSIBLE THREATS, BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES, THAT DEFECTS IN THE APP WILL BE CORRECTED, THAT THE APP WILL MEET YOUR SPECIFIC REQUIREMENTS OR THAT THE APP IS FIT FOR USE IN SPECIAL RISK AREAS.
6.2 Third Party Materials. You understand and agree that we are not responsible for, and will not have any liability for, any website, content, data, information, applications or materials which you may access or attempt to access through the use of App.
6.3 Liability Limits. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR PERSONAL INJURY, OR FOR DAMAGES FROM LOST PROFITS, LOSS OF GOODWILL, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR NEGLIGENCE OF ANY CHARACTER INCLUDING DAMAGES FOR WORK STOPPAGE, LOSS OF DATA, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU FOR DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE GREATER OF THE SUBSCRIPTION FEE, IF ANY, YOU PAID US FOR USE OF THE APP AND $50. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so the above limitations may not apply to you.
6.4 Limitations by Applicable Law. Some jurisdictions do not allow the foregoing exclusions or limitations, so some of the above, and only those particular limitations, may not apply to you. You may also have other rights that vary from state to state and jurisdiction to jurisdiction.
6.5 Basis of the Bargain. You acknowledge and agree that we have offered the App and entered into this Agreement in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that such disclaimers and limitations reflect a reasonable and fair allocation of risk between you and us, and form an essential basis of the bargain between you and us. FMI would not be able to provide the App to you on an economically reasonable basis without these limitations.
6.6 Indemnity. You agree to indemnify, defend, and hold us, our affiliates, contractors, employees, agents, suppliers, licensors, and partners harmless from any claims, losses, damages, and liabilities, including legal fees and expenses, arising out of your use or misuse of the App, your violation of this Agreement or any law or regulation, or any breach of the representations, warranties, and covenants made by you in this Agreement. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
7.1 Changes to this Agreement.
(a) Generally. If FMI decides to change this Agreement, FMI will post the change through an update to the “End User License Agreement” or “EULA” linked from the App and/or other places that FMI reasonably believes will give you notice of the change if you’re paying reasonable attention to the license terms of the App. We also may provide notice of material changes through the App or other means, such as email. In any case, if after a reasonable time (not less than 30 days) following notice of the kind contemplated above you have not ceased the use of the App or objected by contacting FMI, the new version of this Agreement will begin to apply to your use of the App without further action by you.
(b) Affirmative Consent Process. If a rule of law requires that we obtain your affirmative consent to the changes in this Agreement, the following process will apply: FMI will notify you by e-mail if, and to the extent that, you have provided your e-mail address. If you reply to such an e-mail within a reasonable time and request that the new version of this Agreement not apply to you, then we will consider that to be your election to terminate your use of the App. We will, therefore, suspend your access to the services offered through the App through your current registration. If you do not reply to such an e-mail, or FMI receives a reply of “undeliverable” or similar message from your last known e-mail address, then FMI may attempt to obtain your consent by other means. In lieu of using email or other means, FMI may attempt to obtain your affirmative consent through the App interface. In any case, after a reasonable time, unless prohibited by law, you will be deemed to have agreed to the terms of the new version of this Agreement. Please be sure to update your e-mail and other contact information from time to time so that you don’t miss any communication by FMI of the kind contemplated by this section.
(c) Subscribers. Notwithstanding the above, if you have a Subscription to the App, then changes to this Agreement will not become effective with respect to your Subscription until the renewal of your Subscription term. By renewing your Subscription or, if you opted for auto-renewal, allowing it to renew, you are deemed to have agreed to the then current version of our End User License Agreement for the App.
7.2 Assignment. You may not assign or transfer this Agreement, your License or, if applicable, your Subscription to any other person. We may assign our rights and obligations hereunder without your consent or prior notice. Any assignment attempted in violation of the foregoing is deemed void.
7.3 Relationship of Parties. This Agreement will not be construed as creating any agency relationship, partnership, joint venture, fiduciary duty, or any other form of legal association between you and us, and you will not make any representation to the contrary, whether expressly, by implication, appearance or otherwise. This Agreement is not for the benefit of any third parties.
7.4 Export Limits. You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the App for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
7.5 Notices. Any notices relating to this Agreement shall be in writing. Notices will be deemed given by FMI when sent to you at the email address you provide to us. You consent to receive notices by email and agree that any such notices that we send you electronically will satisfy any legal communication requirements. A general notice in the App shall be deemed to have been provided to you the next time you open the App. All notices to FMI relating to this Agreement must be sent by confirmed email, commercial overnight carrier with written proof of delivery, or by certified mail with postage prepaid, to: Finjan Mobile, Inc., 2000 University Avenue, Suite 600, East Palo Alto, California 94303, E-mail: [email protected] or such other address of which we may notify you.
7.6 Sever-ability. If a court of competent jurisdiction finds any clause of this Agreement to be unenforceable for any reason, such clause shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
7.7 Force Majeure. You expressly absolve and release us from any claim of harm resulting from a cause beyond our control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars or governmental restrictions.
7.8 Commercial Items. The App is a “Commercial Item”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” as such term is used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software is being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
7.9 Waiver and Construction. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Any laws or regulations that provide that the language of a contract will be construed against the drafter will not apply to this Agreement. Section and paragraph headings are for convenience only and may not be used in interpreting this Agreement. The words “include” and “including” and words of similar import when used in this Agreement will not be construed to be limiting or exclusive.
7.10 Dispute Resolution; Governing Law. Any litigation or other dispute resolution between you and FMI arising out of or relating to this Agreement or the App, will take place in a state or federal court located in Santa Clara County, California, and you hereby consent to the personal jurisdiction of and exclusive venue in such courts, with respect any such litigation or dispute resolution. In any legal proceeding between you and us arising from this Agreement, the prevailing party will be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys’ and expert witness’ fees) incurred in any such proceeding. This Agreement will be governed by and construed as if entered into by residents of California, in accordance with the laws of the United States and the State of California, except for conflicts of law rules. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
7.11 Entire Agreement. This Agreement, and any modifications or amendments made applicable hereto, constitutes the entire agreement between the parties with respect to the License and the use of the App, and supersedes all prior understandings and agreements regarding its subject matter. Any translation of this Agreement is done for local requirements and in the event of a conflict between the English and any non-English version, the English version of this Agreement shall control.
Last modified: June 22, 2018